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Of  elementary  treatises  on  all  the  principal  subjects  of  the  law. 
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Norton  on  Bills  and  Notes.     (3d  Ed.) 

Clark  on  Criminal  Law.     (2d  Ed.) 

Shipman  on  Common-Law  Pleading.     (2d  Ed.) 

Clark  on  Contracts.     (2d  Ed.) 

Black  on  Constitutional  Law.     (3d  Ed.) 

Fetter  on  Equity. 

Clark  on  Criminal  Procedure. 

Tiffany  on  Sales.     (2d  Ed.) 

Glenn  on  International  Law. 

Jaggard  on  Torts.     (2  vols.) 

Black  on  Interpretation  of  Laws.     (2d  Ed.) 

Hale  on  Bailments  and  Carriers. 

Smith  on  Elementary  Law. 

Hale  on  Damages.     (2d  Ed.) 

Hopkins  on  Real  Property. 

Hale  on  Torts. 

Tiffany  on  Persons  and  Domestic  Relations.     (2d  Ed.) 

Croswell  on  Executors  and  Administrators. 

Clark  on  Corporations.     (2d  Ed.) 

George  on  Partnership. 

Shipman  on  Equity  Pleading. 

McKelvey  on  Evidence.     (2d  Ed.) 

Barrows  on  Negligence. 

Hughes  on  Admiralty. 

Eaton  on  Equity. 

Tiffany  on  Principal  and  Agent. 

Gardner  on  Wills. 

Vance  on  Insurance. 

Ingersoll  on  Public  Corporations. 

Hughes  on  Federal  Jurisdiction  and  Procedure.      (2d  Ed.) 

Childs  on  Surety  and  Guaranty. 

Costigan  on  American  Mining  Law. 

Wilson  on  International  Law. 

Gilmore  on  Partnership. 

Black  on  Judicial  Precedents. 

Tiffany  on  Banks  and  Banking. 

Cooley  on  Municipal  Corporations. 


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Published  and  for  sale  by 
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C5855k 


HANDBOOK 


OF 


JURISDICTION  AND  PROCEDURE 
IN  UNITED  STATES  COURTS 


BY  ROBERT  M.  HUGHES,  M.A. 

OF  THE  NORFOLK  (VA.)  BAR 
AUTHOR  OF  HANDBOOK  OF  ADMIRALTY  LAW 


SECOND  EDITION 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 
1913 


r 


COPYRIGHT,  1904 
BT 

WEST  PUBLISHING  CO. 


COPYRIGHT,  1913 

BT 
WEST  PUBLISHING  CO. 

(HUGHES  FED.PB.,2D  ED.) 


In  Memoriam 

ROBERT  W.  HUGHES,  LL.  D. 

U.  S.  District  Judge 

1874-1898. 


(v)* 


761635 


PREFACE  TO  THE  SECOND  EDITION 


THIS  treatise  is  designed  to  fulfill  the  usual  functions  of  the 
Hornbooks  on  the  subject  of  which  it  treats.  It  does  not  pur- 
port to  be  an  exhaustive  or  elaborate  discussion,  as  such  a  plan 
would  involve  several  volumes,  instead  of  one.  It  is,  however, 
intended  to  be  a  means  of  ready  reference  to  the  law  on  those 
questions  of  ordinary  routine  which  the  author's  experience  as 
a  specialist  in  federal  practice  has  taught  him  most  frequently 
arise.  It  is  believed  that  the  need  exists  for  a  work  of  this 
character,  notwithstanding  the  several  excellent  text-books 
covering  the  general  subject  which  go  into  much  greater  de- 
tail. The  work  is  designed,  also,  for  use  in  law  schools,  where 
the  need  of  such  a  treatise  seems  to  be  specially  apparent. 

It  has  seemed  to  the  author  much  better  and  simpler  in  the 
discussion  of  the  subject  to  commence  with  the  inferior  courts 
and  follow  up  through  the  courts  of  last  resort,  though  that  is 
not  the  usual  scheme  adopted  by  other  text-books  on  the  sub- 
ject. While  this  plan  involves  some  duplication  and  cross- 
referencing,  its  advantage  in  enabling  the  student  to  trace  a 
case  from  its  inception  to  its  final  conclusion  is  so  great  as  to 
have  convinced  the  author  that  it  is  the  best  method  of  treat- 
ing the  subject. 

In  order  to  facilitate  the  use  of  the  book  as  a  court  vade 
mecum,  many  statutes  have  been  quoted  verbatim;  and  the 
Supreme  Court  Rules,  the  Equity  Rules  and  the  Judicial  Code 
have  been  inserted  as  an  appendix.  The  index  under  these 
respective  heads  refers  to  those  so  quoted. 

In  the  discussion  of  so  much  detail,  mistakes  are  inevitable, 
and,  although  the  author  has  endeavored  to  exercise  the  ut- 
most care,  he  cannot  hope  to  have  escaped  them.  He  begs  the 
indulgence  of  the  bar  if  any  such  have  occurred. 

(vii) 


TABLE  OF  CONTENTS 


CHAPTER  I 

OF    THE    SOURCE    OF    FEDERAL   JURISDICTION    AND    THE 
LAW  ADMINISTERED  BY   FEDERAL  COURTS 

Section  Page 

1.  The  Source  of  the  Jurisdiction 3-5 

2.  Derivation  of  Powers  of  Federal  Courts 5 

3.  No  Federal  Common  Law 5-8 

4.  The  Law  Administered 8 

5.  Same — Law  of  Local  State  When  No  Written  Federal 

Law  Applicable 8-9 

6.  Same— Statutes  of  Local  State 9-12 

7.  Same — Unwritten  Law  of  Local  State 13 

8.  Same— Construction  of  State  Statute 13-16 

9.  State  Law  of  Title  to  Real  Property 16 

10.  Contract  or  Personal  Relations 17 

11.  Not  Bound  by  State  Law  in  Questions  of  General  or 

Commercial   Character 17-19 


CHAPTER  II 

THE  DISTRICT  COURT— ITS  CRIMINAL  JURISDICTION  AND 

PRACTICE 

12.  The  Federal  Judicial  System 20-22 

13.  The  District  Court 23-24 

14.  Criminal  Jurisdiction  of  the  District  Courts 24-27 

15.  Criminal  Procedure 28 

16.  Procedure  by  Complaint 28 

17.  United  States  Commissioners 28-33 

18.  Place  of  Trial — Warrant  of  Removal 33 

19.  Same— Proper  Place 34-38 


CHAPTER  III 

THE  DISTRICT  COURT  (Continued)— CRIMINAL  JURISDICTION 
AND  PRACTICE  (Continued) 

20.  Indictment    39-41 

21.  Same — Form  of  Indictment 42-48 

HUGHES  FED.PB.(2o  ED.)      (viii) 


TABLE    OP    CONTENTS  IX 

Section  Page 

22.  Information 49 

23.  Same — Form  of  Information 49 

24.  The    Defense 50-55 

25.  The  Trial  and  Its  Incidents 55-68 


CHAPTER  IV 

THE  DISTRICT  COURT  (Continued)— MISCELLANEOUS  JURIS- 
DICTION 

26.  Penalties,  Forfeitures,  and  Seizures 69 

27.  Same — Nature  and  Form 69-73 

28.  Admiralty 74 

29.  Same — Nature  and  Form 74-76 

30.  Particular  Classes  of  Litigation,  Including  Questions 

under  the  Laws  Relating  to  the  Slave  Trade,  the 
Revenue,  Domestic  and  Foreign,  the  Postal  Laws, 
the  Patent,  Copyright,  and  Trade-Mark  Laws,  the  In- 
terstate Commerce  Laws,  Questions  on  Debentures, 
the  Civil  Rights  Laws,  the  National  Bank  Laws, 
Suits  by  Aliens  for  Torts  and  Suits  against  Consuls  76-82 


CHAPTER  V 
THE  DISTRICT  COURT  (Continued)— BANKRUPTCY 

31.  Bankruptcy — Jurisdiction  Over 83 

32.  Same— History  of  the  Legislation 83 

33.  Same — Policy  of  the  Legislation 84-87 

34.  Constitutionality  of  Bankrupt  Legislation 87-90 

35.  Same — Effect  of  Federal  on  State  Legislation 90-91 

36.  The  Bankruptcy  Courts • 92-94 

37.  Parties — Voluntary    Proceedings 95-96 

38.  Same — Involuntary  Proceedings 96-99 

39.  Pleadings  99-107 

40.  Acts  of  Bankruptcy — Definition  and  Enumeration 107 

41.  Same — Transfers  to  Hinder,  Delay,  and  Defraud  Cred- 

itors      107-109 

42.  Same — Illegal  Preferences 109-110 

43.  Same — Suffering  Preferences  by  Legal  Process 110-113 

44.  Same — Assignment  as  an  Act  of  Bankruptcy 113-115 

45.  Same — Admission  of  Insolvency  in  Writing 116-117 

46.  Time  of  Filing  Petition 117-118 


TABLE  OP  CONTENTS 


CHAPTER  VI 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued) 

Section  Page 

47.  The  Process  on  an  Involuntary  Petition 119-121 

48.  The  Warrant  of  Seizure 122-124 

49.  The  Appointment  of  a  Receiver 124-126 

50.  The    Defense 126-128 

51.  The  Right  to  a  Jury 128-129 

52.  The  Adjudication 130 

53.  The  Creditors'  Meeting 131-140 

54.  The  Examination  of  the  Bankrupt 140-143 


CHAPTER  VII 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued) 

55.  The  Trustee 144-145 

56.  The  Title  of  the  Trustee 145-152 

57.  The  Trustee's  Duties  of  Administration — Recordation 

of  Decree  of  Adjudication 152 

58.  Same— The  Collection  of  the  Assets 153-154 

59.  Same — Trustee's  Rights  against  Parties  Claiming  Ad- 

versely under  Alleged  Void  Transfers,  etc 154-156 

60.  Same — The  Circumstances  Avoiding  an  Alleged  Illegal 

Transfer    157-158 

61.  Same — Same — Insolvency   158-160 

62.  The  Trustee's  Interest  in  Insurance  Policies 160 

63.  The  Trustee's  Interest  in  Rights  of  Action 161 

64.  The  Trustee's  Power  of  Sale 161-163 

65.  The  Trustee's  Duties  as  to  Distribution  of  the  Estate  163-165 

66.  The  Trustee's  Duties  as  to  the  Bankrupt's  Exemptions  165-166 


CHAPTER  VIII 
DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued) 

67.  The  Discharge — Application  for 167-169 

68.  Same— Method  of  Opposing 169-170 

69.  Same— Burden  of  Proof 170-172 

70.  Grounds  of  Opposition  to  Discharge 172-178 

71.  The  Debts  Not  Affected  by  a  Discharge 178-181 

72.  Revocation  of  a  Discharge 181-182 


TABLE    OF    CONTENTS 


CHAPTER  IX 

THE    DISTRICT    COURT    (Continued)— PARTICULAR    CLASSES 
OF  JURISDICTION 

Section  Page 

73.  Claims  against  the  United  States — Proper  Forum....  183-184 

74.  Same— The  Subjects  of  Jurisdiction 184-188 

75.  Same— The  Procedure 188-189 

76.  Same— The  Appeal 189-190 

77.  Same--The  Proper  Appellate  Court 190-192 

78.  Suits  to  Abate  Unlawful  Inclosures  of  Public  Lands. .  192-193 

79.  Suits  under  Immigration  Laws 193-194 

80.  Suits  against  Restraints  and  Monopolies 194-195 

81.  Claims  of  Indians  for  Lands  under  Treaties 196 

82.  Suits  against  United  States  for  Partition 196 

83.  Suits  under  Chinese  Exclusion  Laws 197 

84.  Unclassified  Cases 197 


CHAPTER  X 

THE  DISTRICT  COURT  (Continued)— JURISDICTION  TO  ISSUE 
CERTAIN  EXTRAORDINARY  WRITS 

85.  Ad  Quod  Damnum  or  Condemnation  Proceedings 198-202 

86.  Writ  of  Habeas   Corpus 202-206 

87.  Same— Federal   Jurisdiction 206-209 

88.  Same — When   Jurisdiction    Exercised 209-211 

89.  Same — The  Particular  Federal  Courts  Having  Jurisdic- 

tion to  Issue 211-213 

90.  Same — Procedure  on  Habeas  Corpus 213-216 

91.  Ne  Exeat 216-217 


CHAPTER  XI 

DISTRICT   COURT    (Continued)— ORIGINAL   JURISDICTION 
OVER  ORDINARY  CONTROVERSIES 

92.  The  Ordinary  Civil  Jurisdiction  of  the  District  Courts  218-220 

93.  Same — Suits  of  a  Civil  Nature  at  Common  Law  or  in 

Equity— Meaning  of  "Suit" 220-223 

94.  Same — Same — Suits  at  Law 223 

95.  Same— Same— Suits  in  Equity 223-225 

96.  Same — Suits    by    the   United    States   or   Any    Officer 

Thereof 225-226 


Xii  TABLE  OF  CONTENTS 

Section  Page 

97.  Same — Controversies   between   Citizens   of  the   Same 

State   Claiming  Lands   under   Grants   of   Different 

States  226-227 

98.  Same—  Jurisdictional    Amount 227-235 

99.  Same— Federal    Questions 235-243 

100.    Same — Controversies    between    Citizens    of    Different 

States— Natural   Persons 243-247 


CHAPTER  XII 

THE  DISTRICT  COURT  (Continued)— ORIGINAL  JURISDICTION 

(Continued) 

101.  Same— Same— Corporations  248-255 

102.  Same— Same— Plurality  of  Litigants 255-260 

103.  Same — Controversies  between  Citizens  of  a  State  and 

Foreign  States,  Citizens,  or  Subjects 260-264 

104.  Same— Venue  of  Actions 264-269 

105.  Same — Same — Rule  when  Litigants  are  Numerous 269-270 

106.  Same — Same — Suits   against  Defendants  of  Different 

Districts  in  Same  State,  and  Suits  in  Rem 270-277 


CHAPTER  XIII 

THE  DISTRICT  COURT  (Continued)— ORIGINAL  JURISDICTION 

(Continued) 

107.  Same — Jurisdiction  as  Affected  by  Assignment 278-285 

108.  Same— Devices  to  Confer  Jurisdiction 285-290 

109.  Jurisdiction  as  Incident  to  or  Derivative  from  Other 

Grounds  of  Jurisdiction 290-300 


CHAPTER  XIV 

THE    DISTRICT   COURT    (Continued)— JURISDICTION   BY    RE- 
MOVAL 

110.  Removals  from  State  Courts — Purpose  of  Such  Juris- 

diction     301-302 

111.  Nature  of  the  Right— How  Far  Waivable 303-306 

112.  Scope  of  the  Jurisdiction 307-308 

113.  Federal  Questions 309-319 

114.  Suits  by  the  United  States 319 


TABLE   OF   CONTENTS 


CHAPTER  XV 

THE    DISTRICT   COURT    (Continued)— JURISDICTION   BY    RE- 
MOVAL (Continued) 
Section  Page 

115.  Controversies  between  Citizens  of  Different  States....  320-322 

116.  Devices  to  Prevent  Removal 322-324 

117.  Controversies    between   Citizens    of   the   Same    State 

Claiming  Lands  under  Grants  of  Different  States. ..  325-326 

118.  Controversies  between  Citizens  of  a  State  and  Foreign 

States,  Citizens  or  Subjects 326-328 

119.  Parties  Entitled  to  Remove 328-329 

120.  Separable   Controversies 329-338 

121.  Removal  on  Ground  of  Prejudice  or  Local  Influence..  338-343 

122.  Removal  because  of  State  Denial  of  Equal  Civil  Rights  343-346 

123.  Removal  of  Suits  against  Officers  or  Persons  Enforcing 

the  Internal  Revenue  Laws 346-350 


CHAPTER  XVI 

THE   DISTRICT   COURT    (Concluded)— JURISDICTION   BY    RE- 
MOVAL (Concluded) 

124.  Steps  to  Secure  and  Effect  Removal — In  General 351-352 

125.  Form  of  Petition  in  General 353-356 

126.  Place  to  File  Petition 356-357 

127.  Proper  Averments  in  the  Petition 357-364 

128.  The  Removal  Bond 364-365 

129.  Time  of  Filing  Petition 365-371 

130.  Steps  at  Filing  of  Petition 371-374 

131.  Filing  and  Subsequent  Procedure  in  Federal  Court 375-379 

132.  Motion  to  Remand 380-381 


CHAPTER  XVII 

OTHER    COURTS    VESTED    WITH    ORIGINAL    JURISDICTION 

133.  The  Supreme  Court 382-387 

134.  Other  Courts  of  Less  General  Interest 387-388 


TABLE    OF    CONTENTS 


CHAPTER  XVIII 


PROCEDURE  IN  THE   ORDINARY  FEDERAL   COURTS  OF 
ORIGINAL  JURISDICTION— COURTS   OF  LAW 

Section  Page 

135.  Distinction  between  Law  and  Equity 389-390 

136.  Procedure  in  Courts  of  Law 391-392 

137.  Same— Process 392-394 

138.  Same — Attachments    394-395 

139.  Same — Appearances  396 

140.  Same — Parties  to  Common-Law   Actions 396-397 

141.  Same— Pleading 397-399 

142.  Same — Continuances    399-400 

143.  Same— Trial  400-402 

144.  Same — Same — Evidence 402-404 

145.  Same — Same — Instructions  to  Jury 404-407 

146.  Same — Same — Bill  of  Exceptions 407^10 

147.  Same— Same— Verdict 410-411 

148.  Same— Motion  for  New  Trial 411-412 

149.  Same — Motion  In  Arrest  of  Judgment 412 

150.  Same— Judgment 412-415 

151.  Same — Execution 415-417 


CHAPTER  XIX 

PROCEDURE  IN  THE  ORDINARY  FEDERAL  COURTS  OF 

ORIGINAL  JURISDICTION   (Continued) 

COURTS  OF  EQUITY 

152.  General  Limits  of  Equitable  Jurisdiction 418-419 

153.  The  Equity  Procedure  in   tne  Federal  Courts — How 

Regulated 420-423 

154.  Same— Pleading— General  Requisites  of  the  Bill 423-426 

155.  Same — Same— Injunction  Bills 426-429 

156.  Same — Same — Judges  Who  may  Issue  Injunctions 429-430 

157.  Same — Same — Injunctions  to  State  Courts 430-431 

158.  Same— Same — Injunctions  to  State  Officials  or  Boards  431-433 

159.  Same— The  Process 434-436 

160.  Same— Defaults 436-438 

161.  Same— The  Defense— Motions 439-443 


TABLE    OF    CONTENTS  XV 


CHAPTER  XX 

PROCEDURE  IN  THE   ORDINARY  FEDERAL  COURTS  OF 
ORIGINAL   JURISDICTION   (Continued)— COURTS 

OF  EQUITY  (Continued) 
Section  Page 

162.  The  Defense  (Continued) — The  Answer 444-446 

163.  Same — Same — Joinder  of  Issue  on 446-448 

164.  The  Proofs 448-449 

165.  Same — Testimony  by  Deposition  before  Examiners. ...  449-450 

166.  Same — Testimony  by  Deposition  under  Statutes 450-452 

167.  References 452-457 

168.  The  Decree — Form  of 458 

169.  Same— Its  Enforcement 458-462 

170.  Same — Reopening  of  Decree 463^65 


CHAPTER  XXI 

APPELLATE  JURISDICTION— THE  CIRCUIT  COURT  OF 
APPEALS 

171.  The  Appellate  Courts 466-468 

172.  The  Circuit  Court  of  Appeals— Its  Organization 469-470 

173.  Jurisdiction  of  the  Circuit  Court  of  Appeals 471-473 

174.  Same — Cases  Excepted  from  the  Jurisdiction  of  the 

Circuit  Court   of  Appeals 473-479 

175.  Same — Instances   of  the   Jurisdiction 479-488 

176.  Same — Cases    in   which   the   Decision   of   the   Circuit 

Court  of  Appeals  is  Final 488-492 

177.  Same — Power  of  Circuit  Court  of  Appeals  to  Issue 

Auxiliary   Writs 493 

CHAPTER  XXII 

APPELLATE    JURISDICTION    (Continued)— THE    SUPREME 

COURT 

178.  The  Supreme  Court  of  the  United  States— Its  Organ- 

ization    494-496 

179.  The  Appellate   Jurisdiction   of  the   Supreme   Court — 

The  Courts  whose  Decisions  are  Reviewable  by  the 
Supreme  Court 498 

180.  Appeals  from  the  United  States  District  Courts 496-513 

181.  Appeals  from  the  Circuit  Courts  of  Appeals 514-524 

182.  Appeals  from  Territorial  Courts 525 

183.  Appeals  from  the  Court  of  Appeals  of  the  District  of 

Columbia 526 


XVl  TABLE    OP    CONTENTS 

Section  Page 

184.  Appeals  from  the  Court  of  Claims 527 

185.  Appeals  from  the  Commerce  Court 527 

186.  Review  of  State  Court  Decisions 527-528 

187.  Same— Constitutionality  528-529 

188.  Same — The  Proceedings  Reviewable 530 

189.  Same — The  Courts  whose  Decisions  are  Reviewable. . .  531-532 

190.  Same — By  Whom  the  Right  of  Review  may  be  Invoked          532 

191.  Same — Character  of  Questions  Reviewable 532-537 

192.  Same — How  a  Federal  Question  must  be  Raised  or 

Shown  by  the  Record 537-543 


CHAPTER  XXIII 

PROCEDURE  ON  ERROR  AND  APPEAL 

193.  Review  by  the  Supreme  Court 544-546 

194.  Same— Writ  of  Error 547-558 

195.  Same— Appeal 558-562 

196.  Same— Other  Methods 563-574 

197.  Review  by  the  Circuit  Court  of  Appeals 574-577 

198.  Trial  in  the  Appellate  Courts 577-579 


APPENDIX 

RULES  OF  THE  UNITED  STATES  SUPREME  COURT 
(Page  581) 

RULES  OF  PRACTICE  FOR  THE  COURTS  OF  EQUITY  OF  THE 
UNITED  STATES 

(Page  601) 

THE  JUDICIAL  CODE 
(Page  623) 

THE  COMMERCE  COURT 
(Page  701) 

TABLE  OF  CASES  CITED 
(Page  705) 

INDEX 
(Page  739) 

•  f  t 


This  volume  contains 
Key-Number  Annotations 

That  is  to  say.  for  every  point  of  law  which  is  stated  or 
discussed  in  tKe  text,  and  in  su{>f>ort  of  which  cases  are 
cited,  there  is  added  to  tlie  author  s  note  a  citation  to  the 
Key- Number  section  or  sections  in  the  Decennial  Digest 
or  in  tne  Key-Number  Series,  under  which  all  cases  di- 
rectly involving  that  point  Kave  been  digested.  A  SHnilar 
citation  to  the  Century  Digest  is  given,  except  where  tKe 
principle  involved  is  one  on  wlucn  no  case  law  existed 
prior  to  1897. 


HUGHES  FED.PB.(2o  ED.)        (xviil)t 


A  HANDBOOK 

OF 

FEDERAL    JURISDICTION 
AND  PROCEDURE 

SECOND  EDITION 


INTRODUCTION 

WHAT  IT  COMPREHENDS 

The  subject  of  federal  jurisdiction  and  procedure  includes 
the  body  of  laws  administered  in  the  federal 
courts,  and  the  organization  and  powers  of  the 
different  courts  charged  with  the  duty  of  admin- 
istering those  laws. 

The  federal  government  being  one  of  delegated  powers 
only,  the  questions  coming  before  the  federal  courts  for 
discussion  and  decision  necessarily  are  only  those  which 
the  federal  Constitution,  or  the  acts  of  Congress  passed  in 
pursuance  thereof,  have  intrusted  to  those  courts. 

The  subject  logically  resolves  itself  into  the  following 
general  analysis,  which  will  be  followed  in  this  work: 

A.  The  law  administered  and  its  origin : 

(1)  Solely  statutory. 

(2)  Composed  of 

(a)  Federal  statutes; 

(b)  State  laws. 
HUGHES  FED.PR.^D  KD.) — 1 


INTRODUCTION 

B.  The  courts  administering  the  federal  law: 

(1)  The  courts  of  original  jurisdiction: 

(a)  The  District  Court. 

(b)  The  Supreme  Court 

(c)  Various  minor  courts,  including: 

(1)  The  Court  of  Claims. 

(2)  The    Court   of   Customs   Appeals. 

(3)  The   Commerce   Court. 

(4)  The  courts  of  the  dependencies. 

(2)  The  courts  of  appellate  jurisdiction: 

(a)  The  Circuit  Court  of  Appeals. 

(b)  The   Supreme   Court. 


(Ch.  1,  §  1)  FEDEBAL  JTJBISDICTION 


CHAPTER  I 

OF    THE    SOURCE    OF    FEDERAL    JURISDICTION    AND    THE 
LAW  ADMINISTERED  BY  FEDERAL  COURTS 

1.  The  Source  of  the  Jurisdiction. 

2.  Derivation  of  Powers  of  Federal  Courts. 

3.  No  Federal  Common  Law. 

4.  The  Law  Administered. 

5.  Same — Law  of  Local  State  When  No  Written  Federal  Law  Ap- 

plicable. 

6.  Same — Statutes  of  Local  State. 

7.  Same — Unwritten  Law  of  Local  State. 

8.  Same — Construction  of  State  Statute. 

9.  State  Law  of  Title  to  Real  Property. 

10.  Contract  or  Personal  Relations. 

11.  Not  Bound  by  State  Law  in  Questions  of  General  or  Commer- 

cial Character. 


THE  SOURCE  OF  THE  JURISDICTION 

1.  The  jurisdiction  administered  by  the  federal  courts  aris- 
es exclusively  from  the  federal  Constitution  and 
the  laws  and  treaties  made  under  its  authority. 

Our  dual  system  of  government  renders  us  subject  to 
the  constitution  and  laws  of  our  state  in  most  matters  of 
local  concern,  and  to  the  federal  Constitution  in  national 
and  international  matters.  This  latter  Constitution,  be- 
coming effective  thirteen  years  after  the  independence  of 
the  original  states,  and  only  adopted  after  great  opposition, 
is  a  constitution  of  limited  scope;  containing  simply  the 
powers  therein  expressly  granted,  and  leaving  with  the 
states  all  powers  not  enumerated  and  too  vast  to  be  numer- 
able. 

In  the  conflict  along  the  necessarily  uncertain  border 
land  between  those  federal  powers  expressly  granted  and 
those  cautiously  and  jealously  withheld,  it  required  little 


4  FEDEKAL  JURISDICTION  (Ch.  1 

prescience  to  realize  that  a  system  of  national  courts  was 
necessary  to  protect  the  new  government  in  retaining  and 
defending  the  privileges  and  duties  imposed  upon  it  by 
this  new  and  untried  document.  The  experience  of  the 
states  under  the  Articles  of  Confederation  had  taught  this 
beyond  peradventure.  And  our  history  since  the  adoption 
of  the  Constitution  has  shown  that  if  state  courts  alone  had 
been  intrusted  with  the  duty  of  construing  the  Constitu- 
tion, especially  in  those  doubtful  and  difficult  questions  as 
to  the  relative  powers  of  the  states  and  the  nation,  it  would 
have  been  rendered  impotent  to  accomplish  the  objects  for 
which  it  was  designed.  The  national  courts  and  the  long 
line  of  great  jurists  who  have  sat  in  them  have  saved  it 
from  this  fate,  and  given  it  vigor  and  vitality.  If,  as  some 
say,  they  have  made  of  it  an  instrument  which  its  original 
draftsman  never  designed  and  of  which  they  never  dream- 
ed, it  is  fair  to  say  in  their  vindication  that  they  have  made 
of  us  a  nation  of  which  our  fathers  never  dreamed. 

The  judicial  power  of  the  United  States  courts,  as  a 
whole,  is  conferred  by  article  3,  §  2,  par.  1,  of  the  Consti- 
tution, which  provides:  "The  judicial  power  shall  extend 
to  all  cases,  in  law  and  equity,  arising  under  this  Constitu- 
tion, the  laws  of  the  United  States,  and , treaties  made,  or 
which  shall  be  made,  under  their  authority;  to  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls; 
to  all  cases  of  admiralty  and  maritime  jurisdiction;  to  con- 
troversies to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  states ;  between  a 
state  and  citizens  of  another  state;  between  citizens  of 
different  states,  between  citizens  of  the  same  state  claim- 
ing lands  under  grants  of  different  states,  and  between  a 
state,  or  the  citizens  thereof,  ami  foreign  states,  citizens  or 
subjects." 

It  will  appear,  when  we  come  to  consider  the  distribu- 
tion of  this  general  mass  among  the  different  federal 


§  3)  NO  FEDERAL    COMMON   LAW  5 

courts,  that  Congress  has  not  exhausted  the  powers  con- 
ferred upon  it  by  this  section,  and  that  it  has  left  many 
controversies  to  the  state  courts  which  it  could  have  be- 
stowed upon  the  federal  courts. 

DERIVATION  OF  POWERS  OF  FEDERAL  COURTS 

2.  The  federal  courts  are  courts  of  limited  jurisdiction,  and 

derive  their  powers  solely  from  statute. 

Except  as  to  the  subjects  intrusted  to  the  Supreme  Court 
by  paragraph  2  of  this  same  section,  an  act  of  Congress  is 
necessary  before  the  courts  can  take  cognizance  of  any  of 
the  cases  above  named.1 

As  the  national  government  is  a  government  of  dele- 
gated powers  only,  its  courts  are  courts  of  special  jurisdic- 
tion only,  and  hence  the  party  applying  to  them  for  relief 
must  first  satisfy  them  that  they  have  the  right  to  give  it.2 
This  must  be  shown  by  reference  to  some  statute  giving 
the  right  to  the  relief  sought,  for  the  United  States,  as  a 
nation,  have  no  common  law. 

NO  FEDERAL  COMMON  LAW 

3.  There  is  no.  general  common  law  of  the  United  States  as 

a  nation,  and  hence  the  common-law  rights  admin- 
istered by  the  federal  courts  arise  incidentally  in 
exercising  some  statutory  jurisdiction  conferred 
upon  them. 

1  U.  S.  v.  Hudson,  7  Cranch,  32,  3  L.  Ed.  259 ;   In  re  Wisner,  203  U. 
S.  455,  27  Sup.  Ct.  150,  51  L.  Ed.  264 ;    Columbus  Iron  &  Steel  Co.  v. 
Kanawha  &  M.  R.  Co.  (C.  C.)  171  Fed.  713.    See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  255;  Cent.  Dig.  §  792. 

2  GRACE  v.  AMERICAN  CENT.  INS.  CO.,  109  U.  S.  278,  3  Sup. 
Ct.  207,  27  L.  Ed.  932;    Fishback  v.  Western  Union  Telegraph  Co., 
161  U.  S.  96,  16  Sup.  Ct.  506,  40  L.  Ed.  630;    McEldowney  v.  Card 
(C.  C.)  193  Fed.  477,  482.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  255, 
261;   Cent.  Dig.  §§  192-794. 


6  FEDERAL  JURISDICTION  (Ch.  1 

Before  the  adoption  of  the  federal  Constitution,  each 
state  was  an  independent  sovereign,  with  its  own  body  of 
laws,  the  basis  of  which,  as  to  the  original  thirteen  states, 
was  the  English  common  law.  The  formation  of  the  na- 
tional government  made  no  change  in  this  respect,  and  the 
organization  of  the  national  courts  merely  resulted  in  addi- 
tional tribunals,  before  whom  questions  of  general  jurisdic- 
tion would  come  in  the  states  where  they  sat,  and  in  the 
cases  of  which  they  are  given  jurisdiction.  The  federal 
court  of  a  state  is  not  an  alien  tribunal.  It  takes  judicial 
notice  of  all  things  of  which  a  court  of  the  same  state 
would  take  judicial  notice,  and  is  in  many  particulars,  to  be 
presently  discussed,  controlled  by  the  decisions  of  the  state 
court. 

The  fact  that  the  United  States,  as  a  nation,  have  no 
common  law,  was  decided  very  early  in  its  history.  In  U. 
S.  v.  Hudson  3  an  attempt  was  made  to  prosecute  the  de- 
fendant as  guilty  of  a  common-law  libel,  but  the  court  held 
that  the  prosecution  would  not  lie.  In  the  later  case  of 
Wheaton  v.  Peters 4  the  Supreme  Court  reiterated  that 
there  was  no  common  law  of  the  United  States,  but  that 
the  law  of  the  state  was  administered  by  the  federal  court, 
including  so  much  of  the  common  law  as  that  state  had 
adopted. 

This  subject  has  undergone  much  discussion  of  recent 
years,  and  expressions  may  be  found  in  judicial  opinions 
intimating  that  there  is  a  body  of  common  law  of  the 
United  States  as  a  nation.  They  are  in  cases  where  the 
federal  courts  have  not  felt  themselves  bound  by  decisions 
of  courts  of  the  state.  Properly  construed  they  do  not  as- 
sert a  right  to  administer  any  federal  common  law,  but 
merely  a  right  of  independent  judgment  in  deciding  ques- 

s  7  Cranch,  32,  3  L.  Ed.  259.  See  "Common  Law,"  Dec.  Dig.  (Key- 
No.)  §  13;  Cent.  Dig.  §  11;  "Courts,"  Dec.  Dig.  (Kev-Xo.)  §  2G1; 
Cent.  Dig.  §  792. 

*  8  Pet.  591,  8  L.  Ed.  1055. 


§  3)  NO   FEDERAL  COMMON   LAW  7 

tions  of  general  interest  in  which  the  nation  at  large  is  in- 
terested. Or,  to  put  it  in  another  way  the  federal  courts  in 
such  cases  are  not  asserting  the  existence  of  any  federal 
common  law  but  merely  claiming  the  right  to  differ  with 
the  courts  of,  the  state  on  the  question  what  is  the  common 
law  when  that  question  is  one  of  general  importance.  As 
the  federal  courts  were  designed  to  protect  nonresidents, 
this  right  of  independent  judgment  as  to  what  is  the  com- 
mon law  is  essential  to  the  accomplishment  of  the  object 
for  which  they  were  created. 

This  distinction  is  well  drawn  by  Mr.  Justice  Matthews 
in  Smith  v.  Alabama,5  where  he  says:  "There  is  no  com- 
mon law  of  the  United  States,  in  the  sense  of  a  national 
customary  law,  distinct  from  the  common  law  of  England 
as  adopted  by  the  several  states  each  for  itself,  applied  as 
its  local  law,  and  subject  to  such  alterations  as  may  be 
provided  by  its  own  statutes.  *  *  *  A  determination 
in  a  given  case  of  what  that  law  is  may  be  different  in  a 
court  of  the  United  States  from  that  which  prevails  in  the 
judicial  tribunals  of  ,a  particular  state.  This  arises  from 
the  circumstance  that  the  courts  of  the  United  States,  in 
cases  within  their  jurisdiction,  where  they  are  called  upon 
to  administer  the  law  of  the  state  in  which  they  sit  or  by 
which  the  transaction  is  governed,  exercise  an  independent 
though  concurrent  jurisdiction,  and  are  required  to  ascer- 
tain and  declare  the  law  according  to  their  own  judgment. 
This  is  illustrated  by  the  case  of  New  York  Cent.  R.  Co. 
v.  Lockwood,  17  Wall.  357  [21  L.  Ed.  627],  where  the 
common  law  prevailing  in  the  state  of  New  York,  in  ref- 
erence to  the  liability  of  common  carriers  for  negligence, 
received  a  different  interpretation  from  that  placed  upon 
it  by  the  judicial  tribunals  of  the  state;  but  the  law  as 

e  SMITH  v.  ALABAMA,  124  TL  S.  465,  8  Sup.  Ct.  564,  31  L.  Ed. 
508.  Bee  "Common  Law,"  Dec.  Dig.  (Key-No.)  §  18;  Cent.  Dig.  §  11; 
"Court*,"  Dec.  Dig.  (Key-No.)  §  261;  Cent.  Dig.  §  192. 


8  FEDERAL  JUBISDICTION  (Ch.  1 

applied  was  none  the  less  the  law  of  that  state."  The 
language  of  Mr.  Justice  Brewer  in  Western  Union  Tele- 
graph Co.  v.  Call  Publishing  Co.6  probably  means  no  more 
than  this.  So  also  his  language  in  Kansas  v.  Colorado.7 


THE  LAW, ADMINISTERED 

4.  A  federal  court  of  original  jurisdiction  administers  the 

body  of  law  of  the  state  wherein  it  sits,  whenever 
questions  arising  under  that  law  come  before  it  in 
controversies  of  which  it  is  given  jurisdiction. 

For  instance,  federal  courts  are  given  cognizance  of  con- 
troversies between  citizens  of  different  states.  Such  a  con- 
troversy may  involve  almost  any  question  which  might 
arise  in  a  state  court  between  citizens  of  the  state,  whether 
at  common  law,  in  equity,  or  questions  of  extraordinary 
remedies.  In  the  absence  of  congressional  enactments 
specially  bearing  upon  it,  the  federal  court  would  try  the 
case  substantially  as  the  state  court,  following  the  deci- 
sions of  the  latter  in  some  instances,  and  striking  out  along 
its  own  lines  in  others.  Hence  it  is  now  necessary  to  con- 
sider how  far  state  laws  and  decisions  are  binding  upon  the 
federal  courts,  and  how  far  they  may  be  disregarded. 

SAME— LAW  OF  LOCAL  STATE  WHEN  NO  WRIT- 
TEN FEDERAL  LAW  APPLICABLE 

5.  Under  section  721,  Rev.  St.  U.  S.  [U.  S.  Comp.  St.  1901, 

p.  581],  the  laws  of  the  several  states,  except 
where  the  Constitution,  treaties,  or  statutes  of  the 
United  States  otherwise  require  or  provide,  shall 

e  181  U.  S.  92,  21  Sup.  Ct.  561,  45  L.  Ed.  765. 

i  206  U.  S.  46,  27  Sup.  Ct.  655,  51  L.  Ed.  956.  See  "Courts,"  Dec. 
Dig.  (Key-Xo.)  §§  261,  359;  Cent.  Dig.  §§  792,  939-940,  978. 


THE   LAW   ADMINISTERED  9 

be  regarded  as  rules  of  decision  in  trials  at  com- 
mon law  in  the  courts  of  the  United  States  in 
cases  where  they  apply. 

Under  this  provision  it  becomes  necessary  to  consider 
what  is  meant  by  the  "laws  of  the  several  states."  In 
those  commonwealths  deriving  their  jurisprudence  from 
the  English  common  law,  the  body  of  law  is  either  statu- 
tory or  unwritten.  The  evidence  of  the  latter  is  the  deci- 
sions of  the  courts  of  the  state  administering  it.  Hence 
it  becomes  necessary  to  consider  how  far  each  of  these 
two  sources  of  state  law  is  applied  in  the  federal  courts. 

SAME— STATUTES  OF  LOCAL  STATE 

6.  The  statutes  of  a  state,  in  so  far  as  they  regulate  sub- 
stantive rights,  and  also  in  so  far  as  they  regulate 
remedies  on  the  common-law  side  of  the  court, 
are  adopted  and  enforced  by  the  federal  courts 
where  they  do  not  conflict  with  the  federal  Con- 
stitution and  statutes. 

Under  this  principle,  state  statutes  of  limitations  are 
enforced  by  the  federal  courts  in  common-law  actions.8 
The  statute  of  frauds  of  a  state  is  enforced  in  the  federal 
courts.9  State  statutes  giving  a  right  of  action  for  dam- 
ages resulting  in  death  authorize  such  actions  in  the  fed- 
eral as  well  as  the  state  courts.10  State  statutes  permitting 

s  Bauserman  v.  Blunt,  147  U.  S.  647,  13  Sup.  Ct.  466,  37  L.  Ed. 
316 ;  Security  Trust  Co.  v.  Black  River  Nat.  Bank,  187  U.  S.  230,  22 
Sup.  Ct.  52,  47  L.  Ed.  147;  Newbery  v.  Wilkinson  (C.  C.)  190  Fed. 
62.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  366,  375;  Cent.  Dig.  §  38-$. 

9  Moses  v.  Lawrence  County  Bank,  149  U.  S.  298,  13  Sup.  Ct  900, 
37  L.  Ed.  743.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  311;   Cent.  Dig. 
§§  972-974- 

10  Dennick  v.  Central  R.  Co.  of  New  Jersey,  103  U.  S.  11,  26  L.  Ed. 
439 ;   Atchison,  T.  &  S.  F.  R.  Co.  v.  Sowers,  213  U.  S.  66,  29  Sup.  Ct. 


10  FEDERAL  JURISDICTION  (Ch.  1 

a  plea  of  set-off,  legal  in  its  nature,  authorize  the  filing  of 
such  a  plea,  in  similar  cases  in  the  federal  courts,  and  a 
cross-judgment  upon  it,  but  not  with  the  effect  of  ousting 
the  equitable  jurisdiction  of  the  federal  courts,  or  of  con- 
ferring an  equitable  jurisdiction  or  allowing  equitable  de- 
fenses in  such  courts  on  their  common-law  side,  for  the 
distinction  between  law  and  equity  is  sedulously  guarded 
in  these  courts.11 

State  statutes  permitting  compulsory  surgical  examina- 
tions apply  to  the  federal  courts,  except  where  their  special 
provisions  conflict  with  some  federal  statute.12 

But  the  mode  of  compelling  an  adverse  party  to  pro- 
duce documents  is  governed  by  the  federal  statutes.18 

Statutes  of  Evidence 

State  statutes  of  evidence  apply  in  the  federal  courts, 
being  expressly  adopted  as  to  competency  of  witnesses.14 
Before  the  enactment  of  section  858,  it  had  been  held  that 
state  statutes  of  evidence  were  adopted  by  section  721  as 
rules  of  decision  in  the  federal  courts  on  the  common-law 
side.15 

397,  53  L.  Ed.  695 ;  Southern  Pac.  Co.  v.  Da  Costa,  190  Fed.  689,  111 
C.  C.  A.  417.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  371;  Cent.  Dig.  § 
975. 

11  Scott  v.  Armstrong,  146  TJ.  S.  499,  512,  13  Sup.  Ct.  148,  36  L.  Ed. 
1059;    Charnley  v.  Sibley,  73  Fed.  980,  20  C.  C.  A.  157;    Davis  v. 
Bessemer  City  Cotton  Mills,  178  Fed.  784,  102  C.  C.  A.  232;    Arm- 
strong Cork  Co.  v.  Merchants'  Refrigerating  Co.,  184  Fed.  199,  107 
C.  C.  A.  93;    post,  p.  390.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  335, 
371;   Cent.  Dig.  §§  902-907y2. 

12  Union  Pac.  Co.  v.  Botsford,  141  U.  S.  250,  11  Sup.  Ct  1000,  35 
L.  Ed.  734;    Camden  &  S.  R.  Co.  v.  Stetson,  177  U.  S.  172,  20  Sup. 
Ct.  617,  44  L.  Ed.  721 ;    Hanks  Dental  Ass'n  v.  International  Tooth 
Crown  Co.,  194  U.  S.  303,  24  Sup.  Ct.  700,  48  L.  Ed.  989;    post,  p. 
403.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  351;    Cent.  Dig.  §  924. 

is  Senate  v.  Winton  Motor  Carriage  Co.  (D.  C.)  197  Fed.  777.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  351,  376;  Cent.  Dig.  §§  924,  984. 

i*  U.  S.  Comp.  St.  1901,  p.  659,  as  amended  June  29,  1906,  34  Stat. 
618,  c.  3608. 

IB  Ryan  v.  Bindley,  1  Wall.  66,  17  L.  Ed.  559.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  348,  376;  Cent.  Dig.  §§  922,  984. 


§  6)  THE  LAW  ADMINISTERED  11 

This  does  not  mean,  however,  that  state  decisions  as  to 
common-law  rules  of  evidence  are  binding  on  the  federal 
courts.  In  questions  of  evidence  not  statutory,  the  latter 
courts  decide  for  themselves  what  the  common-law  rule 
is.16 

By  the  act  of  July  2,  1862,17  an  express  provision  was 
inserted  in  the  federal  statute  law,  making  the  state  laws 
as  to  the  competency  of  witnesses  the  rules  of  decision  in 
the  federal  courts,  not  only  at  common  law,  but  in  equity 
and  admiralty  also. 

Then,  after  the  agitation  in  relation  to  the  liberation  of 
the  negro  race  had  resulted  in  their  emancipation,  it  was 
thought  necessary  to  extend  the  rules  of  evidence  for  their 
protection;  and  the  consequence  was  a  provision  in  the 
appropriation  act  of  July  2,  1864,18  to  the  effect  that  in  the 
courts  of  the  United  States  there  shall  be  no  exclusion  of 
any  witness  on  account  of  color,  nor,  in  civil  actions,  be- 
cause he  is  a  party  to  or  interested  in  the  issue  tried. 
This  was  amended  by  the  act  of  March  3,  1865,19  by  adding 
the  clause  in  reference  to  executors,  administrators,  and 
guardians. 

Until  1906  section  858  was  a  combination  of  these  three 
acts.  Its  text  was  as  follows :  "In  the  courts  of  the  United 
States  no  witness  shall  be  excluded  in  any  action  on  ac- 
count of  color,  or  in  any  civil  action  because  he  is  a  party 
to  or  interested  in  the  issue  tried:  provided,  that  in  ac- 
tions by  or  against  executors,  administrators,  or  guardians, 
in  which  judgment  may  be  rendered  for  or  against  them, 
neither  party  shall  be  allowed  to  testify  against  the  other, 

16  Union  Pac.  Ry.  Co.  v.  Yates,  79  Fed.  584,  25  C.  C.  A.  103,  40 
L.  R.  A.  553 ;  Chicago  &  N.  W.  Ry.  Co.  v.  Kendall,  167  Fed.  62,  93 
C.  C.  A.  422,  16  Ann.  Cas.  560.  But  compare  Stewart  v.  Morris,  89 
Fed.  290,  32  C.  C.  A.  203.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  348; 
Cent.  Dig.  §  922. 

IT  12  Stat.  588,  c.  189  (U.  S.  Comp.  St.  1901,  p.  659). 

is  13  Stat.  351,  c.  210  (U.  S.  Comp.  St.  1901,  p.  659). 

i»  13  Stat.  533,  c.  113  (U.  S.  Comp.  St.  1901,  p.  659). 


12  FEDERAL  JURISDICTION  (Ch.  1 

as  to  any  transaction  with,  or  statement  by,  the  testator, 
intestate,  or  ward,  unless  called  to  testify  thereto  by  the 
opposite  party,  or  required  to  testify  thereto  by  the  court. 
In  all  other  respects  the  laws  of  the  state  in  which  the 
court  is  held  shall  be  the  rules  of  decision  as  to  the  com- 
petency of  witnesses  in  the  courts  of  the  United  States  in 
trials  at  common  law,  and  in  equity  and  admiralty."  20 

But  the  amendment  of  June  29,  1906,  cut  out  all  but  the 
last  sentence,  and  rearranged  it  so  as  to  read  as  follows: 
"The  competency  of  a  witness  to  testify  in  any  civil  ac- 
tion, suit  or  proceeding  in  the  courts  of  the  United  States 
shall  be  determined  by  the  laws  of  the  state  or  territory 
in  which  the  court  is  held."  21 

This  renders  obsolete  a  number  of  decisions  based  on 
the  variant  language  of  the  federal  statute  and  various 
state  statutes. 

Hence,  under  section  721,  state  statutes  of  evidence  gov- 
ern in  the  common-law  courts  in  common-law  cases,  so  far 
as  they  do  not  conflict  with  the  other  sections  contained  in 
title  13.,  c.  17,  of  the  Revised  Statutes,  whilst  under  section 
858  they  apply  to  equity  and  admiralty  courts  as  well,  so 
far  as  they  regulate  the  competency  of  witnesses,  and  do 
not  conflict  with  other  provisions  of  federal  law.22 

The  act  does  not  apply  to  criminal  cases  by  its  express 
language.23 

20  u.  S.  Comp.  St  1901,  p.  659. 

21  34  Stat.  618,  c.  3608;   Rowland  v.  Biesecker,  185  Fed.  515,  106  C. 
C.  A.  615.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  376;    Cent.  Dig.  §§ 
925,  984. 

22  CONNECTICUT  MUT.  LIFE  INS.  CO.  v.  TRUST  CO.,  112  U. 
S.  250,  5  Sup.  Ct.  119,  28  L.  Ed.  708 ;    Ex  parte  Fisk,  113  U.  S.  713, 
5  Sup.  Ct.  724,  28  L.  Ed.  1117 ;    Goodwin  v.  Fox,  129  U.  S.  601,  9 
Sup.  Ct.  367,  32  L.  Ed.  805.    The  recent  act  of  February  26,  1913, 
makes   special   provision  for  proof   of  handwriting   in   the  federal 
courts,  allowing  proof  by  comparison. of  different  specimens  either 
by  witnesses  or  by  the  court  or  jury.    See  ''Courts,"  Dec.  Dig.  (Key- 
No.)  §  376;  Cent.  Dig.  §§  925,  98.$. 

23  Logan  v.  U.  S.,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429; 


§§  7-8)  THE   LAW   ADMINISTERED  13 


SAME— UNWRITTEN  LAW  OF  LOCAL  STATE 

7.  The  federal  court  adopts  not  only  the  statutory  law  of 
the  state,  but  its  unwritten  law  as  well,  in  the 
main.  It  follows  the  decisions  of  the  state  courts 
generally,  but  with  some  exceptions  hereinafter 
noted. 


SAME— CONSTRUCTION  OF  STATE  STATUTE 

8.  Under  this  principle,  the  federal  court  adopts  the  con- 
struction placed  upon  the  statute  of  a  state  by  its 
court  of  last  resort,  if  rendered  before  the  cause  of 
action  arose. 

In  such  case  the  state  decision  construing  the  statute  en- 
ters into  and  becomes  part  of  the  statute,  as  far  as  the  fed- 
eral court  is  concerned.24  Hence,  if  a  state  court  of  last 
resort  holds  one  of  its  statutes  to  be  valid  as  far  as  the 
state  Constitution  is  concerned,  such  construction  will  be 
followed  by  a  federal  court.25 

This  principle  applies  to  constructions  of  the  state  Con- 
stitution as  well  as  to  decisions  on  its  Code.26  It  applies  to 

Hendrix  v.  U.  S.,  219  U.  S.  79,  31  Sup.  Ct.  193,  55  L.  Ed.  102.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  376;    Cent.  Dig.  §  984. 

24  First  Nat.  Bank  v.  Chehalis  County,  166  U.  S.  440,  17  Sup.  Ct. 
629,  41  L.  Ed.  1069 ;    Smiley  v.  Kansas,  196  U.  S.  447,  25  Sup.  Ct. 
289,  49  L.  Ed.  546.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366;   Cent. 
Dig.  §§  954-968. 

25  Brown  v.  New  Jersey,  175  U.  S.  172,  20  Sup.  Ct.  77,  44  L.  Ed. 
49 ;   Ughbanks  v.  Armstrong,  208  U.  S.  481,  28  Sup.  Ct.  372,  52  L.  Ed. 
582.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366;   Cent.  Dig.  §§  954-968. 

20  Wilkes  County  v.  Coler,  180  U.  S.  506,  21  Sup.  Ct.  458,  45  L.  Ed. 
642;  Stanly  County  v.  Coler,  190  U.  S.  437,  23  Sup.  Ct.  811,  47  L. 
Ed.  1126 ;  Peters  v.  Gilchrist,  222  U.  S.  483,  32  Sup.  Ct  122,  56  L. 
Ed.  278.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366;  Cent.  Dig.  §§  956, 
957. 


14  FEDERAL  JURISDICTION  (Ch.  1 

state  constructions  of  its  statutes  of  limitation.27  Also  to 
questions  relating  to  municipal  or  county  organizations, 
their  powers  and  boundaries.28  The  federal  courts,  under 
this  principle,  will  follow  the  state  decisions  as  to  the  effect 
of  its  Sunday  laws  upon  the  validity  of  a  contract,  or  the 
right  of  recovery  for  a  tort.29  Also  the  construction  of  a 
state  statute  regulating  assignments  to  secure  creditors.80 
So  as  to  statutes  regulating  sales  of  state  lands.81  So  as  to 
powers  of  state  corporations.32 

The  above  are  illustrations  of  a  numerous  class  in  which 
the  state  decisions  are  followed.  The  reason  is  the  great 
inconvenience  that  would  result  from  having  two  inde- 
pendent and  co-ordinate  sets  of  courts  administering  the 
same  body  of  law  in  different  ways.  Where  no  necessity 
arises  of  protecting  the  litigants  for  whom  the  federal 
courts  were  specially  intended,  the  state  decisions  will  be 
followed.  But  when  that  necessity  arises,  the  federal 
courts  can  no  ,  longer  permit  their  hands  to  be  tied,  and 
hence  the  exceptions  to  the  rule  spring  from  such  necessi- 


27  Balkam  v.  Woodstock  Iron  Co.,  154  U.  S.  177,  14  Sup.  Ct  1010, 
38  L.  Ed.  953 ;    Dibble  v.  Bellingham  Bay  Land  Co.,  163  U.  S.  63,  16 
Sup.  Ct.  939,  41  L.  Ed.  72.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366; 
Cent.  Dig.  §  983. 

28  Claiborne  County  v.  Brooks,  111  U.  S.  400,  4  Sup.  Ct  489,  28  L. 
Ed.  470;    Forsyth  v.  City  of  Hammond,  166  U.  S.  506,  17  Sup.  Ct 
665,  41  L.  Ed.  1095;    Thompson  v.  Searcey  County,  57  Fed.  1030, 
6  C.  C.  A.  674 ;   General  Oil  Co.  v.  Crain,  209  U.  S.  211,  28  Sup.  Ct 
475,  52  L.  Ed.  754.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  S66;    Cent. 
Dig.  §§  962,  963. 

2 »  Hill  v.  Hite,  85  Fed.  268,  29  C.  C.  A.  549;  Bucher  v.  Cheshire 
R.  Co.,  125  U.  S.  555,  8  Sup.  Ct.  974,  31  L.  Ed.  795 ;  Kuhn  v.  Fair- 
mont Coal  Co.,  215  XL  S.  349,  30  Sup.  Ct  140,  54  L.  Ed.  228.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  366;  Cent.  Dig.  §§  939,  956-964. 

so  May  v.  Tenney,  148  U.  S.  60,  13  Sup.  Ct  491,  37  L.  Ed,  368.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  366;  Cent.  Dig.  §  968. 

si  Lockard  v.  Asher  Lumber  Co.,  131  Fed.  689,  65  C.  C.  A.  517. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366;  Cent.  Dig.  §§  958,  959. 

32  Anglo-American  Land  Mortgage  &  Agency  Co.  v.  Lombard,  132 
Fed.  721,  68  C.  C.  A.  89.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366; 
Cent.  Dig.  §  962. 


§§  7-8)  THE  LAW  ADMINISTERED  15 

ties.  Therefore  the  state  construction  of  the  state  statute 
is  no  longer  binding  when  the  question  is  whether  that 
statute  violates  the  federal  statutes  or  Constitution — in 
other  words,  when  a  federal  question  is  involved.33  In 
such  cases  the  federal  courts  must  act  upon  their  own  con- 
victions. 

For  the  same  reason,  when  a  state  court  has  upheld  the 
validity  of  municipal  bonds  issued  under  a  state  statute, 
and  rights  have  been  acquired  on  the  faith  of  such  decision, 
federal  courts  will  not  feel  bound  by  subsequent  decisions 
denying  the  validity  of  such  bonds,  but  will  follow  the 
first  decision.34 

So,  if  such  bonds  when  issued  had  not  been  pronounced 
invalid  by  the  state  court,  the  federal  court  will  determine 
their  validity  for  itself,  but  it  will  follow  the  last  state  deci- 
sion upholding  the  bonds.85 

In  considering  the  validity  of  municipal  bonds,  state  de- 
cisions made  before  the  bonds  are  issued  will  be  followed.36 

But  a  change  in  state  decisions  will  be  considered  bind- 
ing only  as  to  bonds  thereafter  issued,  and  a  state  decision 
after  their  issue  which  affects  their  validity  is  not  bind- 
ing.87 

33  Scott  v.  McNeal,  154  U.  S.  34,  14  Sup.  Ct.  1108,  38  L.  Ed.  896; 
Central  Trust  Co.  v.  Citizens'  St.  Ry.  Co.  of  Indianapolis  (C.  C.)  82 
Fed.  1.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366;   Cent.  Dig.  §§  954- 
968. 

34  Gelpcke  v.  Dubuque,  1  Wall.  175,  17  L.  Ed.  520.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  S68;   Cent.  Dig.  §  951. 

35  Folsom  v.  Township  Ninety-Six,  159  U.  S.  611,  16  Sup.  Ct.  174, 
40  L.  Ed.  278;    Wilkes  County  v.  Coler,  180  U.  S.  506,  21  Sup.  Ct 
458,  45  L.  Ed.  642 ;    Wade  v.  Travis  County,  174  U.  S.  499,  19  Sup. 
Ct  715,  43  L.  Ed.  1060.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  365, 
366;  Cent.  Dig.  §§  951-963. 

se  Lytle  v.  Lansing,  147  U.  S.  59,  13  Sup.  Ct  254,  37  L.  Ed.  78. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  366;  Cent.  Dig.  §§  354-368. 

3  r  Douglass  v.  Pike  County,  101  U.  S.  677,  25  L.  Ed.  968;  Knox 
County  v.  Ninth  Nat.  Bank,  147  U.  S.  91,  13  Sup.  Ct  267,  37  L.  Ed. 
93 ;  Loeb  v.  Columbia  Tp.,  179  TJ.  S.  472,  21  Sup.  Ct.  174,  45  L.  Ed. 
280.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  368;  Cent.  Dig.  §  951. 


16  FEDERAL  JURISDICTION  (Ch.  1 

In  Burgess  v.  Seligman  38  similar  principles  were  applied 
as  to  the  liability  of  a  stockholder  under  a  state  statute. 
When  the  federal  court  has  construed  such  a  statute  in 
the  absence  of  any  decision  by  the  state  court,  it  will  not 
feel  bound  to  change  its  decision  on  account  of  a  subse- 
quent state  court  decision  construing  the  statute  differ- 
ently. 


STATE  LAW  OF  TITLE  TO  REAL  PROPERTY 

9.  The  federal  courts  follow  the  state  decisions  in  relation 
to  title  to  real  property. 

This  is  because  the  state  decisions  establish  rules  of 
property  on  which  titles  and  rights  are  acquired,  and  to 
unsettle  them  would  introduce  uncertainty  too  great  to  be 
endured.39  They  do  not,  however,  feel  bound  to  follow  the 
state  decisions  as  to  the  construction  of  a  particular  devise 
not  depending  on  any  general  settled  rule  of  property  in 
the  state.40 

as  107  U.  S.  20,  2  Sup.  Ct  10,  27  L.  Ed.  359.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  369;  Cent.  Dig.  §§  953,  953%. 

39  LOWNDES  v.  HUNTINGTON,  153  U.  S.  1,  14  Sup.  Ct.  758,  38 
L.  Ed.  615;    St.  Anthony  Falls  Water  Power  Co.  v.  Board  of  Wa- 
ter Com'rs,  168  U.  S.  349,  18  Sup.  Ct.  157,  42  L.  Ed.  497 ;    Sauer  v. 
New  York,  206  U.  S.  536,  27  Sup.  Ct.  686,  51  L.  Ed.  1176;    Seefeld 
v.  Duffer,  179  Fed.  214,  103  C.  C.  A.  32 ;   The  Golden  Eod  (D.  C.)  197 
Fed.  830.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  367;  Cent.  Dig.  §§  958, 
959. 

40  Barber  v.  Pittsburg,  Ft  W.  &  C.  R.  Co.,  166  U.  S.  83,  17  Sup. 
Ct.  488,  41  L.  Ed.  925.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  366, 
367;   Cent.  Dig.  §§  954-960. 


§  11)  GENERAL  OB  COMMERCIAL  QUESTIONS  17 


CONTRACT  OR  PERSONAL  RELATIONS 

10.  They  follow  the  state  decisions  in  general,  in  matters 
of  contract  or  in  personal  relations. 

Hence  the  state  decisions  are  adopted  as  to  the  validity 
of  a  state  marriage  and  the  rights  of  married  women.41 
Also  in  questions  whether  contracts  made  within  the  state 
and  operating  therein  are  in  accordance  with  public  pol- 
icy.42 So  as  to  conditional  sales  and  chattel  mortgages.43 
Also  as  to  the  liability  of  a  municipal  corporation  for 
torts.44 


NOT  BOUND  BY  STATE  LAW  IN  QUESTIONS  OF 
GENERAL  OR  COMMERCIAL  CHARACTER 

11.  In  questions  of  a  general  or  commercial  character  un- 
affected by  local  statute  the  federal  courts  do  not 
feel  bound  by  the  state  decisions,  but  act  upon 
their  own  convictions  of  what  is  right. 

This  right  in  a  federal  court  of  deciding  for  itself  ques- 
tions of  general  law  was  laid  down  as  to  questions  arising 

4iMeister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Slaughter  v. 
Glenn,  98  U.  S.  242,  25  L.  Ed.  122 ;  Canal  Bank  of  New  Orleans  v. 
Partee,  99  U.  S.  325,  25  L.  Ed.  390.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  366;  Cent.  Dig.  §§  054-968. 

42  Missouri,  K.  &  T.  Trust  Co.  v.  Kruinseig,  172  U.  S.  351,  19  Sup. 
Ct.  179,  43  L.  Ed.  474 ;   Hartford  F.  Ins.  Co.  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  175  U.  S.  91,  20  Sup.  Ct.  33,  44  L.  Ed.  84.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  366;    Cent.  Dig.  §§  954-968. 

43  Bryant  v.  Swofford  Bros.  Dry  Goods  Co.,  214  U.  S.  279,  29  Sup. 
Ct.  015,  53  L.  Ed.  997.     See  "Courts,"  Dec.  Dig.  (Key-No.)   §  366; 
Cent.  Dig.  §§  954-968. 

44  Clarke  v.  Atlantic  City  (C.  C.)  180  Fed.  598.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  366;   Cent.  Dig.  §§  954-968. 

HUGHES  FED.PB.(2o  ED.) — 2 


18  FEDEBAL  JURISDICTION  (Ch.  1 

under  the  law  merchant  in  the  early  case  of  Swift  v.  Ty- 
son.45 Such  a  right  would  appear  essential  in  order  for  a 
federal  court  to  guard  the  interests  of  nonresidents  against 
the  possibility  of  state  decisions  laying  down  rules  which 
would  work  in  favor  of  the  resident.  The  law  merchant 
being  common  to  all  civilized  nations,  a  federal  court 
could  not  tie  itself  down  to  the  theory  of  treating  it  as  a 
local  rule  of  action.46 

The  construction  of  insurance  contracts  is  also  a  ques- 
tion of  general  law,  as  to  which  the  federal  courts  feel  at 
liberty  to  form  their  own  opinions.47 

The  liability  of  common  carriers,  the  validity  of  stipula- 
tions in  their  bills  of  lading,  the  measure  of  damages  in 
suits  against  them,  are  also  matters  of  general  interest,  as 
to  which  the  federal  courts  act  independently,  except  in  so 
far  as  such  matters  are  validly  regulated  by  state  statute.49 

The  federal  courts  also  consider  the  law  of  master  and 
servant  as  one  of  general  interest,  and  not  of  mere  local 
concern;  and  hence  they  decide  for  themselves  whether 
a  given  case  is  a  case  of  fellow  service  or  of  liability,  re- 
gardless of  the  state  decisions  and  in  the  absence  of  stat- 
ute. As  the  federal  decisions  on  the  subject  differ  widely 

45  16  Pet.  1,  10  L.  Ed.  865.    See  "Courts,"  Dec.  Dig.  (Key-No.)  I 
372;   Cent.  Dig.  §§  977-979. 

46  Brooklyn  City  &  N.  R.  Co.  v.  National  Bank  of  the  Republic, 
102  U.  S.  14,  26  L.  Ed.  61 ;    Phipps  v.  Harding,  70  Fed.  468,  17  C. 
C.  A.  203,  30  L.  R.  A.  513 ;    Dygert  v.  Trust  Co.,  94  Fed.  913,  37  C. 
C.  A.  389;    Forrest  v.  Safety  Banking  &  Trust  Co.  (C.  C.)  174  Fed. 
345.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  372;   Cent.  Dig.  §§  977-979. 

47  Washburn  &  Moen  Mfg.  Co.  v.  Reliance  M.  Ins.  Co.,  179  U.  S. 
1,  15,  21  Sup.  Ct  1,  45  L.  Ed.  49;    Gordon  v.  Ware  Nat  Bank,  132 
Fed.  444,  65  C.  C.  A.  580,  67  L.  R.  A.  550.     See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  372;  Cent.  Dig.  §§  977-979. 

48  Myrick  v.  Michigan  Cent.  Ry.  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425, 
27  L.  Ed.  325 ;   Lake  Shore  &  M.  S.  R.  Co.  v.  Prentice,  147  U.  S.  101, 
13  Sup.  Ct.  261,  37  L.  Ed.  97;    New  York  Cent.  R.  Co.  v.  Lockwood, 
17  Wall.  357,  21  L.  Ed.  627.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  372; 
Cent.  Dig.  §§  977-979. 


§  11)  GENERAL   OR  COMMERCIAL  QUESTIONS  19 

from  those  of  some  states,  this  makes  the  selection  of  the 
forum  a  very  important  step  in  many  of  these  cases.49 

The  federal  courts  follow  their  own  judgment  as  to  the 
measure  of  damages.50  Also  as  to  questions  of  negli- 
gence.51 

49  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct.  914, 
37  L.  Ed.  772;    Snipes  v.  Southern  R.  Co.,  166  Fed.  1,  91  C.  C.  A. 
593;   Illinois  Cent.  R.  Co.  v.  Hart,  176  Fed.  245,  100  C.  C.  A.  49.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  372;   Cent.  Dig.  §§  977-979. 

50  Western  Union  Tel.  Co.  v.  Burris,  179  Fed.  92,  102  C.  C.  A.  386; 
Norfolk  &  P.  Traction  Co.  v.  Miller,  174  Fed.  607,  98  C.  C.  A.  453 ; 
Woldson  v.  Larson,  164  Fed.  548,  90  C.  C.  A.  422 ;    H.  T.  Smith  Co. 
v.  Minetto-Meriden  Co.  (C.  C.)  168  Fed.  777.    See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  366;   Cent.  Dig.  §§  977-979. 

51  Force  v.  Standard  Silk  Co.  (C.  C.)  160  Fed.  992;  Id.,  170  Fed. 
184,  95  C.  C.  A.  286 ;  Snare  &  Triest  Co.  v.  Friedman,  169  Fed.  1,  94 
C.  C.  A.  369,  40  L.  R.  A.  (N.  S.)  367.     See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  366;   Cent.  Dig.  §§  977-979. 


20  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  2 


CHAPTER  II 

THE  DISTRICT  COURT— ITS  CRIMINAL  JURISDICTION  AND 

PRACTICE 

12.  The  Federal  Judicial  System. 

13.  The  District  Court. 

14.  Criminal  Jurisdiction  of  the  District  Courts. 

15.  Criminal  Procedure. 

16.  Procedure  by  Complaint 

17.  United  States  Commissioners. 

18.  Place  of  Trial — Warrant  of  Removal. 

19.  Same — Proper  Place. 


THE  FEDERAL  JUDICIAL  SYSTEM 

12.  The  judicial  power  of  the  United  States  is  vested  in  one 
Supreme  Court,  established  by  the  Constitution, 
and  various  inferior  courts  organized  by  Congress 
under  the  authority  of  the  Constitution. 

The  Original  United  States  Courts,  and  Their  Evolution  into 
the  Present  System 

Article  3,  §  1,  of  the  Constitution,  provides  that  the 
judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  Congress 
may  from  time  to  time  ordain  and  establish.  It  thus  ap- 
pears that  the  only  court  established  by  the  Constitution  is 
the  Supreme  Court.  The  others  are  creatures  of  congres- 
sional action. 

Acting  under  this  authority,  Congress,  by  the  judiciary 
act  of  1789,  established  the  first  federal  courts,  and  dis- 
tributed the  jurisdiction  among  them.  They  divided  the 
United  States,  as  then  constituted,  into  judicial  districts, 
no  district  containing  more  than  one  state,  and  established 
in  each  district  a  district  court  and  a  circuit  court.  Since 
then,  as  the  country  grew,  additional  districts  and  circuits 


§  12)  THE   FEDERAL   JUDICIAL   SYSTEM  21 

have  been  established.  This  original  act,  with  subsequent 
enlargements,  is  now  embodied  in  the  Judicial  Code  of 
March  3,  1911,  in  effect  January  1,  1912.1  These  district 
and  circuit  courts  were  given  by  the  original  act  of  1789 
all  of  the  original  jurisdiction  which  the  United  States 
courts  then  exercised,  except  the  small  amount  conferred 
upon  the  Supreme  Court.  Until  1891  the  circuit  court  had 
some  appellate  supervision  over  the  district  court. 

Under  the  original  act,  a  judge,  known  as  the  district 
judge,  was  to  be  chosen,  who  was  to  hold  both  the  district 
court  and  the  circuit  court  in  his  district,  except  in  cases  of 
appeals  from  his  own  decisions  in  the  district  court.2  In 
order  to  provide  for  this  case,  and  also  for  holding  the 
circuit  court  in  cases  of  special  interest,  the  nation  was 
divided  into  larger  units,  known  as  circuits;  and  one  jus- 
tice of  the  United  States  Supreme  Court  was  assigned  to 
each  of  these  circuits.  This  Supreme  Court  justice  could 
hold  the  circuit  court  of  any  district  contained  in  his  cir- 
cuit. He  could  sit  with  the  district  judge;  or,  in  cases  of 
appeals  from  the  district  court  to  the  circuit  court,  he  it 
was  who  heard  and  disposed  of  those  appeals.  This  con- 
tinued to  be  the  system  until  just  after  the  Civil  War, 
when  an  additional  judge,  known  as  a  circuit  judge,  was 
provided  for  each  circuit;  the  main  object  being  to  relieve 
the  justices  of  the  Supreme  Court  from  the  labor  of  hold- 
ing the  circuit  court,  as  the  growth  of  business  in  the  Su- 
preme Court  had  rendered  it  impracticable  for  them  to 
continue  to  do  much  circuit  court  work.  Then  by  the  act 
of  March  3,  1891,  establishing  the  circuit  courts  of  ap- 
peals,3 additional  circuit  judges  were  established.  This 
scheme  of  distributing  the  main  federal  original  jurisdic- 
tion between  the  district  and  circuit  courts,  the  district 


1  36  Stat.  1087  (U.  S.  Comp.  St.  Supp.  1911,  p.  128). 

2  Section  551,  Rev.  St.  (U.  S.  Comp.  St  1901,  p.  446). 
s  U.  S.  Comp.  St  1901,  p.  547. 


22  DISTRICT  COURT — CRIMINAL  JURISDICTION          (Ch.  2 

court  having  in  the  main  the  cases  of  special  jurisdiction, 
and  the  circuit  court  the  cases  of  more  usual  character, 
continued  until  1911.  By  that  time  it  had  been  increas- 
ingly realized  that  the  great  mass  of  the  work  in  the  cir- 
cuit courts  was  being  done  by  the  district  judges.  Com- 
mittees and  commissions  had  been  for  several  years  en- 
gaged in  rearranging  and  codifying.  The  result  was  first 
the  Penal  Code  of  March  4,  1909,  in  effect  January  1,  1910,* 
and  next  the  Judicial  Code  of  March  3,  1911,  in  effect  Janu- 
ary 1,  1912,5  which  abolished  the  circuit  court  entirely  and 
amalgamated  its  jurisdiction  with  that  of  the  district  court, 
thus  making  the  latter  practically  the  sole  repository  of  the 
jurisdiction  in  which  the  bar  at  large  is  interested.  This 
latter  act  codifies  and  includes  the  first  thirteen  chapters 
of  the  judiciary  title  of  the  Revised  Statutes,6  chapter  15 
on  juries,7  and  chapters  20  and  21  relating  to  the  court  of 
claims.8  Chapters  14  on  district  attorneys,  marshals  and 
clerks,  16  on  fees,  17  on  evidence,  18  on  procedure  and  19 
on  limitations  are  yet  to  be  codified. 

There  are  also  many  courts  of  special  jurisdiction  which 
have  been  established  since  the  original  act.  One  of  these 
is  the  court  of  claims,  established  in  1855. 9  There  are  also 
the  courts  of  the  District  of  Columbia  and  the  courts  of 
the  territories;  and  then  there  are  the  courts  of  appellate 
jurisdiction,  consisting  of  the  circuit  courts  of  appeals,  es- 
tablished by  the  act  of  March  3,  1891, 10  and  the  Supreme 
Court,  which,  as  already  mentioned,  was  established  by 
the  Constitution  itself. 

It  will  now  be  necessary  to  review  the  organization,  ju- 
risdiction, and  practice  of  these  several  courts. 

*35  Stat  1088  (U.  S.  Comp.  St.  Supp.  1911,  p.  1588). 
5  36  Stat  1087  (U.  S.  Comp.  St  Supp.  1911,  p.  128). 
e  Title  13  (U.  S.  Comp.  St.  1901,  pp.  306-597). 

7  Id.  pp.  623-630. 

8  U.  S.  Comp.  St.  1901,  pp.  729-764. 

»  Sections  1049-1093,  Rev.  St.  (U.  S.  Comp.  St.  1901,  p.  729  et  seq.). 
10  U.  S.  Comp.  St.  1901,  p.  546. 


§  13)  THE   COURT  23 

(j  ,  £  ,     THE  DISTRICT  COURT 

13.  The  district  courts  are  courts  of  original  jurisdiction, 
each  having  territorial  supervision  over  an  area 
known  as  a  judicial  district,  and  held  by  a  judge 
known  as  a  district  }udge. 

The  District  Court,  and  Its  Personnel 

This  court  is  held  by  the  district  judge,  who  is  required 
to  live  within  his  district.  The  districts  being  denned 
largely  by  state  lines,  the  territorial  jurisdiction  of  the  dis- 
trict courts  follows  the  lines  as  laid  down  by  the  act  of  the 
states.  When  two  states  agree  as  to  a  boundary  line  which 
has  been  in  dispute,  and  the  effect  of  such  agreement  is  to 
throw  into  one  state  territory  which  had  been  in  another, 
the  corresponding  district  court  extends  over  such  new 
territory.11 

The  statutes  contain  various  provisions  for  holding  the 
district  court,  if  for  any  reason  the  district  judge  of  that 
district  is  prevented  from  sitting.  These  provisions  will  be 
found  in  sections  13  to  23  of  the  Judicial  Code.  The  first  of 
these  sections  applies  in  terms  only  to  cases  of  disability  of 
the  district  judge,  and  apparently  does  not  apply  to  a  case 
where  there  is  a  vacancy  in  the  office.12  The  only  provi- 
sions expressly  applying  to  vacancies  are  sections  22  and 
23.  Apparently,  however,  the  language  of  section  14, 
which  allows  the  designation  of  another  judge  in  case  of 
accumulation  of  business,  would  permit  such  designation, 
not  only  when  business  has  accumulated  on  account  of  an 
unusual  press  of  litigation,  or  on  account  of  disability,  but 
also  where  there  is  a  vacancy.  In  any  event,  if  the  ap- 

11  In  re  Devoe  Mfg.  Co.,  108  U.  S.  401,  2  Sup.  Ct  894,  27  L.  Ed. 
764.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  419;   Cent.  Dig.  §  1120. 

12  Ball  v.  U.  S.,  140  U.  S.  118,  11  Sup.  Ct.  761,  35  L.  Ed.  377.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  421;  Cent.  Dig.  §  1121. 


24  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  2 

pointment  of  another  judge  to  hold  court  in  case  of  ac- 
cumulation of  business  is  made,  and  there  is  nothing  on 
the  record  to  show  that  there  is  an  actual  vacancy  in  the 
office,  the  act  of  a  judge  so  holding  court  could  not  be 
questioned;  for  he  would  be  a  judge  de  facto,  and  his  acts 
would  be  binding  upon  litigants.13 

There  is  also  a  provision  contained  in  section  20  of  the 
Judicial  Code  providing  for  the  case  where  a  district  judge 
is  so  interested  in  a  suit  that  it  would  be  improper  for  him 
to  sit,  or  is  a  material  witness. 

General  Nature  of  the  Jurisdiction  of  the  District  Court 

As  a  rule,  the  jurisdiction  conferred  upon  the  district 
court  was  of  an  exceptional  or  special  character ;  the  great 
mass  of  civil  controversies  of  which  the  federal  courts  are 
given  original  jurisdiction  having  been  conferred  upon  the 
circuit  court.  But  now  its  jurisdiction  is  very  extensive, 
and  covers  cases  cognizable  both  in  criminal  courts,  the 
common-law  courts,  and  the  chancery  courts,  to  say  noth- 
ing of  the  courts  of  extraordinary  jurisdiction,  like  the  ad- 
miralty and  bankruptcy  courts. 

CRIMINAL  JURISDICTION  OF  THE  DISTRICT 
COURTS 

14.  The  second  clause  of  section  24  of  the  Judicial  Code 
gives  the  district  courts  jurisdiction  of  all  crimes 
and  offenses   cognizable  under  the  authority   of 
.  the  United  States  committed  within  their  respec- 
tive districts  or  upon  the  high  seas. 

In  this  connection  it  must  be  remembered  that  there  is 
no  such  thing  as  a  common-law  offense  against  the  United 
States,  but  offenses  are  statutory  only;  and,  in  order  to 

is  McDowell  v.  TJ.  S.,  159  U.  S.  596,  16  Sup.  Ct.  Ill,  40  L.  Ed.  271. 
See  "Judges,"  Dec.  Dig.  (Key-No.)  §  6;  Cent.  Dig.  §§  11,  12. 


§  14)  JURISDICTION  OF  THE   COURTS  25 

sustain  a  prosecution  under  this  section,  some  act  of  Con- 
gress other  than  section  24  must  be  specified  which  creates 
such  an  offense.14 

Crimes  against  the  United  States  are  nearly  all  con- 
tained in  the  Penal  Code  of  March  4,  1909.15 

Most  of  these  statutes  punishing  crimes  against  the  per- 
son applied  to  lands  or  reservations  under  the  exclusive 
jurisdiction  of  the  United  States,  or,  in  case  of  offenses  on 
the  water,  to  such  waters  as  are  not  only  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States,  but 
are  also  out  of  the  jurisdiction  of  any  particular  state.  Un- 
der this  provision,  crimes  of  this  nature  committed  in  a 
harbor,  or  in  a  body  of  water  bounded  on  each  side  by  the 
same  state,  are  not  cognizable  by  the  federal  courts,  but 
the  punishment  of  such  offenses  is  left  to  the  state  courts.16 
It  had  also  been  held  that  the  statutes  giving  the  federal 
courts  jurisdiction  over  offenses  committed  on  the  high 
seas  apply  to  the  Great  Lakes,  the  Supreme  Court  holding 
that  in  the  proper  sense  of  the  terra  the  Great  Lakes  are 
high  seas,  just  as  much  as  the  Mediterranean  or  the  Baltic. 
This  was  decided  in  U.  S.  v.  Rodgers,17  which  was  a  case 
where  the  offense  was  committed  in  1887,  and  the  decision 
was  rendered  in  1893.  Prior  to  the  decision  in  that  case, 


i*  Pettibone  v.  U.  S.,  148  U.  S.  197,  13  Sup.  Ct.  542,  37  L.  Ed.  419; 
U.  S.  v.  Eaton,  144  U.  S.  677,  12  Sup.  Ct.  764,  36  L.  Ed.  591 ;  U.  S. 
v.  Martin  (D.  C.)  176  Fed.  110.  See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  §  89;  Cent.  Dig.  §  128. 

1535  Stat.  1088  (U.  S.  Comp.  St.  Supp.  1911,  p.  1588). 

"IT.  S.  v.  ROGERS  (D.  C.)  46  Fed.  1;  SAME  v.  RODGERS,  150 
U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed.  1071 ;  Ex  parte  Ballinger  (D.  C.) 
5  Hughes,  387,  88  Fed.  781;  U.  S.  v.  Peterson  (D.  C.)  64  Fed.  145; 
U.  S.  v.  Bevans,  3  Wheat.  336,  4  L.  Ed.  404;  Wynne  v.  U.  S.,  217 
U.  S.  234,  30  Sup.  Ct.  447,  54  L.  Ed.  748 ;  Ex  parte  O'Hare,  179  Fed. 
662,  103  C.  C.  A.  220.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  97; 
Cent.  Dig.  §§  183-190. 

IT  U.  S.  v.  RODGERS,  150  U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed. 
1071.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§ 
183-190. 


26  DISTRICT   COURT — CRIMINAL  JURISDICTION         (Ch.  2 

however,  Congress,  by  the  act  of  September  4,  1890,18  had 
expressly  provided  for  an  extension  of  the  criminal  juris- 
diction of  the  federal  courts  over  the  Great  Lakes  and  their 
connecting  waters.  In  the  Penal  Code  the  rulings  of  the 
courts  were  adopted,  and  the  subject  made  clear  by  the  in- 
sertion of  a  section  covering  the  subject.19 

It  is  impossible  within  the  limits  of  this  treatise  to  dis- 
cuss the  statutes  defining  the  various  crimes  against  the 
United  States.  It  is  not  the  national  policy  to  create  of- 
fenses cognizable  by  the  United  States  courts,  except  in  so 
far  as  it  may  be  necessary  to  see  to  the  proper  execution 
of  the  federal  laws.  The  great  mass  of  offenses  are  of- 
fenses against  the  states,  and  not  the  United  States;  and 
the  offenses  against  the  latter  relate  principally  to  offenses 
on  the  high  seas  which  would  not  fall  under  the  authority 
of  any  single  state,  to  offenses  committed  on  lands  under 
the  exclusive  jurisdiction  of  the  United  States,  like  forts 
and  military  reservations,  and  to  offenses  against  the  cus- 
toms and  revenue  laws,  the  pension  laws,  the  postal  laws, 
and  the  national  banking  laws.  It  is  essential  to  the  prop- 
er administration  ,of  the  government  that  these  offenses 
should  be  cognizable  by  the  federal  courts.  Under  article 
1,  §  8,  cl.  17,  of  the  Constitution,  Congress  is  given  the 
power  of  exclusive  legislation  over  the  seat  of  government, 
and  over  all  places  purchased  by  consent  of  the  Legislature 
of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  all  other  needful 
buildings.  Under  this  clause  the  jurisdiction  of  the  United 
States  courts  over  crimes  committed  on  such  places  is  nec- 
essarily exclusive,20  but  even  under  this  clause  the  letter 
of  the  Constitution  is  followed,  and,  in  case  of  land  pur- 
is  U.  S.  Comp.  St  1901,  p.  3627. 

i»  Penal  Code,  §  272  (U.  S.  Comp.  St.  Supp.  1911,  p.  1671). 
20  Sharon  v.  Hill  (C.  C.)  24  Fed.  726;    Ft.  Leavenworth  R.  Co.  v. 
Lowe,  114  U.  S.  525,  5  Sup.  Ct.  995,  29  L.  Ed.  264;    U.  S.  v.  Press 
Publishing  Co.,  219  U.  S.  1,  31  Sup.  Ct.  212,  55  L.  Ed.  65,  21  Ann. 


§  14)  JURISDICTION  OF  THE  COURTS  27 

chased  by  the   United  States   without  the  assent  of  the 
state,  the  jurisdiction  is  not  necessarily  exclusive.21 

In  speaking  of  offenses  exclusively  cognizable  by  the 
United  States  courts,  the  offense,  in  so  far  as  it  is  an  of- 
fense against  the  federal  law,  is  necessarily  exclusively 
punishable  by  the  federal  courts.22  But  in  many  cases  the 
same  act  or  state  of  facts  may  be  an  offense  both  against 
the  state  laws  and  the  federal  laws,  and  in  such  case  the 
offender  may  be  prosecuted  in  both  courts,  though  the  first 
court  that  arrests  him  would  not  permit  interference  by  the 
other  court.23  The  offenses  created  and  defined  by  the 
federal  statutes  in  reference  to  federal  buildings  or  other 
lands  owned  by  the  United  States  or  under  their  exclusive 
jurisdiction  are  substantially  the  usual  offenses  punishable 
in  the  state  courts.  By  way  of  extra  precaution,  it  is  pro- 
vided by  section  289  of  the  Penal  Code  that  anything  which 
is  an  offense  under  the  law  of  the  state  in  which  such  place 
is  situated  shall  be  an  offense  against  the  United  States 
and  punishable  as  it  is  by  the  state  law  in  force  at  the  time 
of  the  enactment  of  that  section,  which  went  into  effect 
on  January  1,  1910.2* 


Cas.  942;   Judicial  Code,  §  256  (U.  S.  Comp.  St.  Supp.  1911,  p.  233). 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  183-190. 

21  U.  S.  v.  Perm  (C.  C.)  48  Fed.  669.     See  "Criminal  Law,"  Dec. 
Dig.  (Key-No.)  §  97;   Cent.  Dig.  §§  183-190. 

22  Thomas  v.  Loney,  134  U.  S.  372,  10  Sup.  Ct.  584,  33  L.  Ed.  949; 
Fitzgerald  v.  Green,  134  U.  S.  377,  10  Sup.  Ct.  586,  33  L.  Ed.  951; 
Ohio  v.  Thomas,  173  U.  S.  276,  19  Sup.  Ct  453,  43  L.  Ed.  699 ;    Ex 
parte  Roach  (D.  C.)  166  Fed.  344;    Commonwealth  v.  Kitchen,  141 
Ky.  655,  133  S.  W.  586.     See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  § 
95;    Cent.  Dig.  §§  161-175. 

23  Penal  Code,  §  326  (U.  S.  Comp.  St.  Supp.  1911,  p.  1685);    Cross 
v.  North  Carolina,   132  U.  S.  131,   10  Sup.   Ct  47,  33  L.  Ed.  287; 
Crossley  v.  California,  168  U.  S.  640,  18  Sup.  Ct.  242,  42  L.  Ed.  610; 
Callahan  v.  U.  S.,  195  Fed.  924,  115  C.  C.  A.  612.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §  100;    Cent.  Dig.  §  114. 

24  U.  S.  v.  Press  Publishing  Co.,  219  U.  S.  1,  31  Sup.  Ct.  212,  55 
L.  Ed.  65,  21  Ann.  Cas.  942.    See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  {  95;  Cent.  Dig.  §§  183-190. 


28  DISTRICT   COURT — CRIMINAL  JURISDICTION         (Ch.  2 

CRIMINAL  PROCEDURE 

15.  Criminal  proceedings  in  the  federal  courts  are  insti- 

tuted 

(a)  By  complaint  before  an  examining  officer,  looking  to 

an  indictment; 

(b)  By  indictment  or  information,  as  the  initial  step. 

PROCEDURE  BY  COMPLAINT 

16.  It  is  provided  that,  upon  complaint  under  oath  before 

them,  a  justice  or  judge  of  the  United  States,  a 
United  States  commissioner,  and  certain  state  offi- 
cers of  the  state  wherein  the  offender  is  found, 
may  have  the  offender  arrested  and  imprisoned  or 
bailed,  as  the  case  may  be,  for  trial  before  such 
court  of  the  United  States  as  by  law  has  cogni- 
zance of  the  offense,  under  procedure  agreeable 
to  the  usual  mode  of  process  against  offenders 
in  the  state  in  which  the  procedure  is  being  con- 
ducted. 


UNITED  STATES  COMMISSIONERS 

17.  The  officers  before  whom  offenders  are  usually  brought 
under  this  procedure  are  the  United  States  com- 
missioners. These  officers  have  various  powers, 
similar  on  the  criminal  side  to  the  ordinary  magis- 
trates in  the  judicial  systems  of  the  states. 

Section  1014,  Rev.  St.,25  also  provides  that  in  such  case 
the  procedure  shall  be  agreeably  to  the  usual  mode  of  pro- 

26U.  S.  Comp.  St.  1901,  p.  716. 


§§  15-17)  CRIMINAL  PROCEDURE  29 

cess  against  offenders  in  such  state.  The  usual  procedure 
under  this  section  is  by  complaint  on  oath  before  some  of 
the  above  officers.  The  fourth  amendment  to  the  Consti- 
tution provides  that  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized.  Under  these  constitutional  and 
statutory  provisions,  it  has  been  held  that  a  complaint 
must  be  on  oath,  of  personal  knowledge,  and  not  merely 
on  an  oath  or  affirmation  of  mere  belief.29  The  procedure 
in  such  case  follows  the  usual  practice  of  the  state,  as  re- 
quired by  the  statute,  and  the  officer  issuing  the  warrant 
proceeds  as  the  corresponding  state  officer  would  pro- 
ceed.27 The  procedure  by  indictment  or  information,  in 
cases  where  an  information  lies,  is  also  very  common  and 
well  known.28 

The  Warrant 

On  complaint  duly  sworn  to  as  above  described,  the  offi- 
cer issues  a  warrant  of  arrest  to  bring  the  prisoner  before 
him  at  a  given  time  and  place.  It  is  not  necessary,  how- 
ever, that  the  warrant  should  be  returned  before  the  officer 
issuing  it,  for  by  the  act  of  August  18,  1894,29  it  must  be 
returned  by  the  marshal  before  the  nearest  judicial  officer 
who  has  jurisdiction  for  a  hearing,  commitment,  or  taking 
of  bail;  the  object  of  this  act  being  to  prevent  excessive 

26U.  S.  v.  Burr,  Fed.  Cas.  No.  14,692;  U.  S.  v.  Collins  (D.  C.)  79 
Fed.  65 ;  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406,  45  L.  Ed.  577. 
See  "Criminal  Law,"  Dec,  Dig.  (Key-No.)  §  209;  Cent.  Dig.  §§  415- 
420. 

2TU.  S.  v.  Sauer  (D.  C.)  73  Fed.  671;  U.  S.  v.  Dunbar,  83  Fed. 
151,  27  C.  C.  A.  488 ;  U.  S.  v.  Zarafonitis,  150  Fed.  97,  80  C.  C.  A. 
51,  10  Ann.  Cas.  290 ;  Zarafonitis  v.  U.  S.,  156  Fed.  1023,  84  C.  C. 
A.  680.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  837;  Cent.  Dig.  §  908; 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  209;  Cent.  Dig.  §§  415-420. 

28  U.  S.  v.  Baumert  (D.  C.)  179  Fed.  735.  See  "Criminal  Law," 
Dec.  Dig.  (Key-No.)  §  211;  Cent.  Dig.  §§  420-431;  "Indictment  and 
Information,"  Dec.  Dig.  (Key-No.)  §§  3,  9,  36. 

2»  U.  S.  Comp.  St.  1901,  p.  717. 


30  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  2 

costs  by  having  commissioners  issue  warrants  for  parties 
at  great  distances,  thereby  multiplying  both  commission- 
er's and  marshal's  fees. 

The  warrant  must,  as  required  by  amendment  4  to  the 
Constitution,  particularly  describe  the  person  to  be  ar- 
rested. Consequently  a  warrant  not  conforming  to  this  re- 
quirement would  be  illegal.  As  an  illustration,  in  West 
v.  Cabell 30  the  warrant  was  against  James  West.  Under 
it  the  officer  arrested  Vandy  West.  The  warrant  was  held 
to  be  void,  though  testimony  was  adduced  to  show  that 
Vandy  West  was  really  the  man  who  was  in  the  mind 
of  the  commissioner  when  the  warrant  was  issued. 

A  seal  is  not  essential  to  the  validity  of  the  warrant.  If 
there  is  no  statute  requiring  it,  and  the  officer  issuing  it 
has  no  seal,  but  it  is  merely  signed,  the  warrant  is  valid.81 

United  States  Commissioners 

When  the  warrant  has  been  issued  and  the  accused  ar- 
rested, he  is  brought  before  the  committing  officer  for  a 
preliminary  examination.  The  officer  before  whom  he  is 
usually  brought  in  such  case  is  now  known  as  a  United 
States  commissioner.  By  the  act  of  May  28,  1896,82  the 
office  of  circuit  court  commissioner  was  abolished,  and 
that  of  United  States  commissioner  established.  This  offi- 
cer has  various  powers,  similar  on  the  civil  side  to  those  of 
a  notary  public,  and  on  the  criminal  side  to  those  of  a  mag- 
istrate. His  powers  are  summarized  in  U.  S.  v.  Allred  S3 
as  follows :  "The  duties  of  these  officers  are  prescribed  by 
law,  and  they  are,  in  general,  to  issue  warrants  for  offenses 

so  153  TJ.  S.  78,  14  Sup.  Ct.  752,  38  L.  Ed.  643.  See,  also,  U.  S.  v. 
Doe  (D.  C.)  127  Fed.  982;  Todd  v.  U.  S.,  158  U.  S.  278,  15  Sup.  Ct. 
889,  39  L.  Ed.  982.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  218; 
Cent.  Dig.  §§  444-453. 

si  Starr  v.  U.  S.,  153  U.  S.  614,  14  Sup.  Ct  919,  38  L.  Ed.  841.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  218;  Cent.  Dig.  §  448. 

32  u.  S.  Comp.  St.  1901,  p.  499. 

33  155  U.  S.  591,  15  Sup.  Ct.  231,  39  L.  Ed.  273.    See  "United  States 
Commissioners,"  Dec.  Dig.  (Key-No.)  §§  4-1 ;   Cent.  Dig.  §  S. 


§§  15-17)  CRIMINAL  PROCEDURE  31 

against  the  United  States;  to  cause  the  offenders  to  be  ar- 
rested and  imprisoned,  or  bailed,  for  trial,  and  to  order  the 
removal  of  offenders  to  other  districts  (Rev.  St.  §  1014 
[U.  S.  Comp.  St.  1901,  p.  716])  ;  to  hold  to  security  of  the 
peace  and  for  good  behavior  (section  727  [U.  S.  Comp. 
St.  1901,  p.  584]);  to  carry  into  effect  the  award  or  arbi- 
tration, or  decree  of  any  consul  of  any  foreign  nation;  to 
sit  as  judge  or  arbitrator  in  such  differences  as  may  arise 
between  the  captains  and  crews  of  any  vessels  belonging  to 
the  nations  whose  interests  are  committed  to  his  charge; 
and  to  enforce  obedience  by  imprisonment  until  such 
award,  arbitration,  or  decree  is  complied  with  (section 
728)  ;  to  take  bail  and  affidavits  in  civil  causes  (section  945 
[U.  S.  Comp.  St.  1901,  p.  694]);  to  discharge  poor  con- 
victs imprisoned  for  nonpayment  of  fines  (section  1042  [U. 
S.  Comp.  St.  1901,  p.  724]);  to  take  oaths  and  acknowledg- 
ments (section  1778  [U.  S.  Comp.  St.  1901,  p.  1211]);  to 
institute  prosecutions  under  the  laws  relating  to  crimes 
against  the  elective  franchise,  and  civil  rights  of  citizens, 
and  to  appoint  persons  to  execute  warrants  thereunder 
(sections  1982-1985  [U.  S.  Comp.  St.  1901,  pp.  1264, 
1265]);  to  issue  search  warrants  authorizing  internal  rev- 
enue officers  to  search  premises,  where  a  fraud  upon  the 
revenue  has  been  committed  (section  3462  [U.  S.  Comp. 
St.  1901,  p.  2283])  ;  to  issue  warrants  for  deserting  foreign 
seamen  (section  5280  [U.  S.  Comp.  St.  1901,  p.  3598]);  to 
summon  masters  of  vessels  to  appear  before  him  and  show 
cause  why  process  should  not  issue  against  such  vessel 
(section  4546  [U.  S.  Comp.  St.  1901,  p.  3087]);  to  issue 
warrants  for  and  examine  persons  charged  with  being  fugi- 
tives from  justice  (sections  5270  and  5271  [U.  S.  Comp. 
St.  1901,  pp.  3591,  3593]);  and  to  take  testimony  and 
proofs  of  debt  in  bankruptcy  proceedings  (sections  5003 
and  5076)." 

His  duties  under  section  1014  are  assimilated  to  those  of 
a  state  committing  magistrate,  and  in  holding  the  prelim- 


32  DISTEICT  COURT — CRIMINAL  JURISDICTION         (Ch.  2 

inary  examination  of  the  accused  he  acts  as  a  state  magis- 
trate would  act  under  the  state  practice.34  In  this  respect, 
however,  he  is  in  no  sense  holding  a  court  of  the  United 
States,  but  is  acting  simply  as  a  committing  magistrate.35 
As  the  Constitution  requires  that  no  warrant  shall  issue 
but  upon  probable  cause,  it  becomes  his  duty,  in  holding 
such  examination,  and  in  issuing  the  warrant  in  the  first 
instance,  to  examine  into  the  question  whether  there  is 
probable  cause  to  believe  that  the  accused  has  committed 
any  offense.  In  making  this  inquiry,  he  may  examine  into 
the  facts,  and  in  fact  it  is  usually  necessary  for  him  to  do 
so,  in  order  to  decide  whether  the  prisoner  is  entitled  to 
bail.36  Under  section  1015  of  the  Revised  Statutes,  the 
prisoner  is  entitled  to  bail  in  all  except  capital  cases,  and 
the  United  States  commissioner  may  decide  whether  to 
admit  him  to  bail  or  not ;  and  this  he  may  do  either  when 
holding  an  examination  under  a  warrant  issued  on  com- 
plaint, or  when  the  other  procedure  by  indictment  has 
been  taken,  and  the  prisoner  has  been  arrested  on  the  in- 
dictment.37 If  bail  is  wanted  in  capital  cases,  the  commis- 
sioner has  no  power  to  take  it,  but  in  such  cases  only  some 
federal  judge  has  the  power  to  take  bail. 

The  preliminary  examination  is  a  valuable  right,  and  the 

s*  U.  S.  v.  Martin  (D.  C.)  17  Fed.  150 ;  U.  S.  v.  Greene  (D.  C.)  100 
Fed.  941;  Greene  v.  Henkel,  183  U.  S.  249,  22  Sup.  Ct.  218,  46  L. 
Ed.  177.  See  "United  States  Commissioners,"  Dec.  Dig.  (Key-No.)  § 
7;  Cent.  Dig.  §  3. 

35  Todd  v.  U.  S.,  158  U.  S.  278,  15  Sup.  Ct.  889,  39  L.  Ed.  982;   U. 
S.  v.  Tom  Wan  (D.  C.)  160  Fed.  207;    Tom  Wan  v.  IT.  S.,  163  Fed. 
1008,  90  C.  C.  A.  178.    See  "United  States  Commissioners,"  Dec.  Dig. 
(Key-No.)  §  7;   Cent.  Dig.  §  3. 

36  IT.  S.  v.  Smith  (C.  C.)  17  Fed.  510;    U.  S.  v.  Hughes  (D.  C.)  70 
Fed.  972.    See  "Bail,"  Dec.  Dig.  (Key-No.)  §  47;   Cent.  Dig.  §  174. 

sr  u.  S.  v.  Sauer  (D.  C.)  73  Fed.  671;  Hoeffner  v.  U.  S.,  87  Fed. 
185,  30  C.  C.  A.  610;  Id.,  87  Fed.  1005,  31  C.  C.  A.  594;  U.  S.  v. 
Louis  (C.  C.)  149  Fed.  277.  See  "Sail,"  Dec.  Dig.  (Key-No.)  §  47; 
Cent.  Dig.  §  174. 


§§  18-19)      PLACE  OF  TBIAL — WARRANT  OP  REMOVAL  33 

prisoner  can  have  it  either  on  prosecutions  instituted  by 
complaint  or  by  indictment.38 

If  the  commissioner  thinks  that  there  is  probable  cause 
to  believe  that  the  accused  has  committed  the  crime  with 
which  he  is  charged  he  may  commit  him  for  trial,  a  writ 
being  necessary  in  such  case.39 

Under  the  sixth  amendment  to  the  Constitution,  the  ac- 
cused is  entitled,  among  other^things,  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor.  Pursuant  to 
this  provision,  section  879  of  the  Revised  Statutes  40  gives 
the  commissioner  who  holds  this  examination  the  right  to 
require  the  defendant's  witnesses,  in  case  of  offenses  on 
the  high  seas  or  elsewhere  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States,  to  be  recognized  to 
appear  at  that  place  where  the  accused  will  need  their  tes- 
timony. 


PLACE  OF  TRIAL— WARRANT  OF  REMOVAL 

18.  To  insure  the  constitutional  guaranty  of  a  speedy  and 
public  trial  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  com- 
mitted, it  is  provided  that,  where  an  offender  is 
committed  in  any  district  other  than  that  where 
the  offense  is  to  be  tried,  the  judge  of  the  district 
where  he  is  committed  shall  issue  a  warrant  to  re- 
move him  to  the  district  where  the  trial  is  to  be 
had. 

38  U.  S.  v.  Farrington  (D.  C.)  5  Fed.  343.  See  "Criminal  Law," 
Dec.  Dig.  (Key-No.)  §  223;  Cent.  Dig.  §§  463-465. 

soErwin  v.  U.  S.  (D.  C.)  37  Fed.  470,  2  L.  R.  A.  229;  U.  S.  v. 
Harden  (D.  C.)  10  Fed.  802.  See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  §241;  Cent.  Dig.  §§  458,  501-508. 

*o  U.  S.  Comp.  St.  1901,  p.  668. 

HUGHES  FED.PB.(2o  ED.) — 3 


34  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  2 


SAME— PROPER  PLACE 

19.  The  proper  place  for  the  trial  of  offenses  committed 
within  any  district  is  in  that  district,  and  the  prop- 
er place  for  the  trial  of  offenses  committed  on  the 
high  seas  or  outside  of  any  district  at  all  is  the 
district  where  the  offender  is  found  or  where  he 
is  first  brought. 

Warrant  of  Removal 

The  sixth  amendment  to  the  Constitution  provides  that 
the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  shall  have  been  committed.  In  conformity  to 
this  provision,  section  1014  also  provides  that,  where  an 
offender  is  committed  in  any  district  other  than  that  where 
the  offense  is  to  be  tried,  the  judge  of  the  district  where  he 
is  committed  shall  issue  a  warrant  to  remove  him  to  the 
district  where  the  trial  is  to  be  had.  This  warrant  of  re- 
moval must  show  on  its  face  that  such  a  trial  of  some  of- 
fense is  to  be  had,  though  it  is  not  very  technical  in  its 
form.  For  instance,  in  U.  S.  v.  Horner,41  the  warrant 
transferring  him  to  another  district  stated  that  the  prisoner 
was  to  be  tried  "on  such  counts  of  the  indictment  as  he  can 
be  legally  tried  on  in  said  district."  There  was  at  least  one 
count  in  the  indictment  which  showed  jurisdiction  in  the 
court  of  the  district  to  try  him,  and  it  was  held  that  the 
warrant  was  sufficiently  definite. 

When  a  judge  is  requested  under  this  provision  to  issue 
such  a  warrant  of  transfer,  he  acts  not  merely  in  a  minis- 
terial capacity,  but  in  a  judicial  one;  and  he  may  examine 
into  the  case,  certainly  so  far  as  to  inspect  the  proceedings 

4i  (D.  C.)  44  Fed.  677;  Horner  v.  U.  S.,  143  U.  S.  207,  12  Sup.  Ct 
407,  36  L.  Ed.  126.  Sec  "Criminal  Law,"  Dec.  Dig.  (fey-No.)  §  242; 
Cent.  Dig.  §§  509,  510. 


§§  18-19)      PLACE  OF  TRIAL — WARRANT  OF  REMOVAL  35 

and  see  that  the  court  to  which  he  is  asked  to  move  >he 
prisoner  has  jurisdiction.  As  to  the  question  of  fact,  a  cer- 
tified copy  of  the  indictment  is  prima  facie,  but  not  con- 
clusive, evidence,  and  would  justify  him  in  sending  the 
prisoner  on,  though  he  would  have  the  right,  in  his  discre- 
tion, to  hear  additional  evidence  if  he  saw  fit.42  When  an 
application  is  made  by  the  authorities  of  another  district  to 
a  judge  to  remove  the  prisoner  to  such  district  for  trial,  it 
ought  to  show  that  proceedings  have  been  instituted  in 
such  district,  though  not  necessarily  an  indictment.43  The 
prisoner  is  entitled  to  notice  of  the  time  when  the  judge  is 
to  examine  into  the  question  of  sending  him  to  another  dis- 
trict, but  before  any  removal  an  examination  or  an  indict- 
ment in  one  of  the  two  districts  is  necessary.44  A  removal 
to  the  District  of  Columbia  is  authorized  by  the  act.45 

* 

The  Place  of  Trial 

Article  3,  §  2,  of  the  Constitution,  provides  that  the  trial 
shall  be  held  in  the  state  where  the  crime  shall  have  been 
committed,  but  when  not  committed  within  any  state  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may 
by  law  have  directed;  and  the  sixth  amendment  provides 
that  the  trial  shall  be  in  the  state  and  district  wherein  the 
crime  shall  have  been  committed.  The  provisions  of  these 
amendments  apply  only  to  trials  in  the  federal  courts,  not 

*  2  Price  v.  McCarty,  89  Fed.  84,  32  C.  C.  A.  162;  In  re  Wood  (D. 
C.)  95  Fed.  288;  U.  S.  v.  Greene  (D.  C.)  100  Fed.  941;  Greene  v. 
Henkel,  183  U.  S.  249,  22  Sup.  Ct.  218,  46  L.  Ed.  177 ;  Price  v.  Hen- 
kel,  216  U.  S.  488,  30  Sup.  Ct.  257,  54  L.  Ed.  581.  See  "Criminal 
Law,"  Dec.  Dig.  (Key-Xo.)  §  242;  Cent.  Dig.  §§  509.  510. 

"U.  S.  v.  Price  (D.  C.)  84  Fed.  636;  Greene  v.  Henkel,  183  U.  S. 
249,  22  Sup.  Ct  218,  46  L.  Ed.  177.  See  •'Criminal  Laic,"  Dec.  Dig. 
(Kcy-Xo.)  §  242;  Cent.  Dig.  §§  509,  510. 

"  U.  S.  v.  Karlin  (D.  C.)  85  Fed.  963;  U.  S.  v.  Yarborough  (D.  C.) 
122  Fed.  293.  See  "Criminal  Law,"  Dec.  Dig.  (Key-Xo.)  §  242;  Cent. 
Dig.  §§  509,  510. 

45  Benson  v.  Henkel,  198  U.  S.  1,  25  Sup.  Ct  569,  49  L.  Ed.  919. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  242;  Cent.  Dig.  §§  509, 
510. 


36  DISTRICT   COURT — CRIMINAL  JURISDICTION         (Ch.  2 

to  proceedings  in  the  state  courts,  and  they  apply  only  to 
strictly  criminal  proceedings,  not  to  contempt  proceed- 
ings.46 In  furtherance  of  these  constitutional  provisions, 
section  40  of  the  Judicial  Code  provides  that  the  trial  of 
capital  offenses  shall  be  had  in  the  county  where  the  of- 
fense was  committed,  where  it  can  be  done  without  great 
inconvenience.  Section  41  provides  that  the  trial  of  of- 
fenses committed  on  the  high  seas  or  elsewhere,  out  of  the 
jurisdiction  of  any  particular  state  or  district,  shall  be  in 
the  district  where  the  offender  is  found,  or  into  which  he 
is  first  brought;  and  section  42  provides  that  where  an 
offense  is  begun  in  one  judicial  circuit,  and  completed  in 
another,  it  shall  be  deemed  to  have  been  committed  in 
either,  and  may  be  dealt  with  in  either.  Under  these  con- 
stitutional and  statutory  provisions,  the  proper  place  for 
the  trial  of  offenses  committed  within  any  district  is  that 
district. 

It  may  be  sometimes  a  difficult  question  to  decide  just 
where  an  offense  has  been  committed.  That  depends  upon 
the  character  of  the  offense,  and  the  proper  construction 
of  the  statute  creating  it.  To  illustrate,  it  was  held  in  Re 
Palliser  47  that  a  New  York  party  who  wrote  to  a  Con- 
necticut postmaster,  offering  to  buy  stamps  on  credit, 
against  the  statute  forbidding  it,  committed  his  offense  in 
Connecticut,  where  the  letter  was  received,  and  the  Con- 
necticut district  was  the  proper  place  where  he  should  be 
tried.  So,  too,  in  U.  S.  v.  Homer,48  where  a  lottery  ticket 

46  Nashville,  C.  &  St.  L.  R.  Co.  v.  Alabama,  128  U.  S.  96,  9  Sup. 
Ct.  28,  32  L.  Ed.  352 ;   Eilenbecker  v.  District  Court,  134  U.  S.  31,  10 
Sup.  Ct.  424,  33  L.  Ed.  801 ;    In  re  Cole,  163  Fed.  180,  184,  90  C.  C. 
A.  50,  23  L.  R.  A.  (N.  S.)  255.    See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  §  242;   Cent.  Dig.  §§  509,  510. 

47  (C.  C.)  40  Fed.  575;    Palliser  v.  U.  S.,  136  U.  S.  257,  10  Sup.  Ct 
1034,  34  L.  Ed.  514.    See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  97; 
Cent.  Dig.  §§  m-191. 

48  (D.  C.)  44  Fed.  677;    Homer  v.  U.  S.,  143  U.  S.  207,  12  Sup.  Ct. 
407,  36  L.  Ed.  126.     See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  97; 
Cent.  Dig.  §§  171-191. 


§§  18-19)      PLACE  OF  TRIAL — WARRANT  OF  REMOVAL  37 

was  mailed  in  New  York  to  a  party  in  Illinois,  it  was  held 
that  the  offense  was  triable  in  Illinois.  The  proper  venue 
of  an  indictment  against  a  senator  for  receiving  illegal 
compensation  under  section  1782  of  the  Revised  Statutes  49 
is  where  the  money  was  put  to  -his  credit  in  bank.50  The 
Supreme  Court,  however,  has  never  finally  settled  defi- 
nitely where  the  prosecution  for  murder  should  be  tried,  if 
the  fatal  blow  was  given  in  one  district  and  the  death  oc- 
curred in  another,  though  the  question  is  discussed  in  Pal- 
liser  v.  U.  S.51  and  Ball  v.  U.  S.52  The  question  is  set 
at  rest  by  section  336  of  the  Penal  Code,  which  places  the 
commission  of  the  crime  of  murder  or  manslaughter  at  the 
place  where  the  injury  or  other  cause  of  death  happened. 

In  a  prosecution  for  a  conspiracy  the  venue  may  be  laid 
wherever  an  overt  act  is  performed  by  any  one  of  the  con- 
spirators.53 

The  constitutional  provision  in  reference  to  trying  the 
case  in  the  district  where  it  arose  does  not,  however,  pre- 
vent Congress  from  enacting,  as  it  has  done  in  section  41 
of  the  Judicial  Code,  that  the  trial  of  offenses  on  the  high 
seas,  or  outside  of  any  district  at  all,  shall  be  in  the  district 
where  the  offender  is  found  or  into  which  he  is  first 
brought.54 

In  U.  S.  v.  Arwo  B5  a  murder  had  been  committed  on  the 

4»  U.  S.  Comp.  St.  1901,  p.  1212. 

so  Burton  v.  U.  S.,  196  U.  S.  283,  25  Sup.  Ct.  243,  49  L.  Ed.  482. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  118;  Cent.  Dig.  §  232. 

51  136  U.  S.  257,  10  Sup.  Ct.  1034,  34  L.  Ed.  514.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §  112;   Cent.  Dig.  §§  220-230. 

52  140  U.  S.  118,  11  Sup.  Ct.  761,  35  L.  Ed.  377.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  112,  113;   Cent.  Dig.  §§  220-232. 

ss  Penal  Code,  §  37  (U.  S.  Comp.  St.  Supp.  1911,  p.  1600) ;  Hyde 
v.  U.  S.,  225  U.  S.  347,  32  Sup.  Ct.  793,  56  L.  Ed.  1114.  See  "Crimi- 
nal Laic,"  Dec.  Dig.  (Key-No.)  §  113;  Cent.  Dig.  §§  190,  232. 

S*  U.  S.  v.  Dawson,  15  How.  467,  14  L.  Ed.  775;  Cook  v.  U.  S.,  138 
U.  S.  157,  11  Sup.  Ct.  268,  34  L.  Ed.  906.  See  "Criminal  Law,"  Dec. 
Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  111-191. 

55  19  Wall.  486,  22  L.  Ed.  67.  See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  §  97;  Cent.  Dig.  §§  177-191. 


38  DISTRICT   COURT — CRIMINAL  JURISDICTION         (Ch.  2 

high  seas.  The  murderer  was  taken  into  the  Southern 
District  of  New  York,  and  turned  over  to  the  authorities 
there.  The  vessel  containing  him  stopped  five  days  at 
quarantine  at  the  mouth  of  the  lower  harbor  of  New  York 
City,  which  was  in  the  Eastern  District  of  New  York. 
The  Supreme  Court  held,  in  an  opinion  containing  no  dis- 
cussion of  the  question,  that  he  could  be  tried  in  the  South- 
ern District,  where  the  officers  had  carried  him. 

Under  sections  5570  and  following  56  there  are  various 
regulations  in  relation  to  guano  islands  which  have  come 
under  the  jurisdiction  of  the  United  States.  Section  272  of 
the  Penal  Code  applies  the  provisions  of  the  Code  to  these 
islands.  In  Jones  v.  U.  S.57  it  was  held  that  such  offenses, 
under  section  730,  now  section  41  of  the  Judicial  Code, 
could  be  tried  in  the  district  where  the  offender  was 
brought. 

66  U.  S.  Comp.  St.  1901,  p.  3739. 

57  137  U.  S.  202,  11  Sup.  Ct.  80,  34  L.  Ed.  691.  See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  177-191. 


20)  DISTRICT  COURT — CRIMINAL  JURISDICTION  39 


CHAPTER  III 

THE  DISTRICT  COURT  (Continued)— CRIMINAL  JURISDICTION 
AND  PRACTICE  (Continued) 

20.  Indictment 

21.  Same — Form  of  Indictment. 

22.  Information. 

23.  Same — Form    of   Information. 

24.  The  Defense. 

25.  The  Trial  and  Its  Incidents. 


INDICTMENT 

20.  Indictment  by  a  grand  jury  is  the  most  formal  mode  of 
criminal  procedure,  and  is  required  by  law  in  all 
cases  of  capital  or  infamous  offenses. 

The  general  rules  of  criminal  procedure  and  practice  in 
the  federal  courts  are  based  upon  those  of  the  common 
law,  though  the  rigor  and  technicality  of  the  common  law 
have  been  much  modified  by  statute.1  The  fourth,  fifth, 
sixth,  seventh,  and  eighth  amendments  to  the  Constitution 
are  practically  a  bill  of  rights,  and  show  the  solicitude  of 
our  ancestors  to  protect  the  citizen  in  every  way  from  un- 
just prosecutions.  In  fact,  these  amendments  are  prac- 
tically parts  of  the  original  Constitution,  for  the  only  way 
in  which  some  of  the  states  were  induced  to  adopt  the 
Constitution  in  their  state  conventions  was  the  assurance 
of  its  advocates  that  it  should  at  once  be  amended  by  these 
additions. 

The  fifth  amendment  provides,  among  other  things,  that 
no  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of 

i  Howard  v.  U.  S.,  T5  Fed.  986,  21  C.  C.  A.  586,  34  L.  R.  A.  509. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  337;  Cent.  Dig.  §  908. 


'• 


40  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  3 

a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger.  This  renders  an  indictment  neces- 
sary in  all  cases  of  capital  or  infamous  offenses.  The  ques- 
tion, what  constitutes  an  infamous  offense  was  long  un- 
settled, but  recent  decisions  of  the  Supreme  Court  have 
laid  down  as  the  test  the  punishment  which  can  be  in- 
flicted. Any  offense  which  may  be  punishable  by  confine- 
ment in  a  state  prison  or  penitentiary  for  a  term  of  years, 
either  with  or  without  hard  labor,  is  an  infamous  offense, 
in  the  sense  of  this  provision.  The  test  is  not  the  punish- 
ment that  is  actually  inflicted  in  the  special  case,  but  the 
punishment  that  might  be  inflicted  on  the  crime  charged 
in  the  indictment,  whether  that  punishment,  as  a  matter  of 
fact,  is  inflicted  in  the  special  case  or  not ;  and  the  Supreme 
Court  in  these  cases  has  repudiated  the  test  of  infamous 
offenses  based  upon  the  question  of  its  effect  on  the  pris- 
oner in  regard  to  his  competency  as  a  witness  thereafter, 
and  applies  simply  the  test  as  to  the  character  of  the  pun- 
ishment.2 The  question  whether  a  given  act  is  a  felony  or 
not  did  not  affect  the  question  whether  the  offense  is  in- 
famous. If  the  punishment  was  as  defined  above,  the  of- 
fense was  infamous,  though  only  a  misdemeanor;  and,  if 
not  as  defined  above,  it  might  not  have  b'een  infamous, 
though  a  felony. 

With  these  decisions  in  view,  the  committee,  in  drafting 
the  Penal  Code  (Act  March  4,  1909,  c.  321,  35  Stat.  1088 
[U.  S.  Comp.  St.  Supp.  1911,  p.  1588]),  provided  by  section 
335  that  all  offenses  which  may  be  punished  by  death  or 
imprisonment  for  a  term  exceeding  one  year  shall  be 
deemed  felonies;  and  all  other  offenses,  misdemeanors. 

The  provisions  as  to  hard  labor  were  omitted  because  the 

2  Ex  parte  WILSON,  114  U.  S.  417,  5  Sup.  Ct.  935,  29  L.  Ed.  89 ; 
Mackin  v.  U.  S.,  117  TL  S.  348,  6  Sup.  Ct.  777,  29  L.  Ed.  909;  In  re 
Claasen,  140  U.  S.  200,  11  Sup.  Ct.  735,  35  L.  Ed.  409.  See  "Indictment 
and  Information,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §§  4-8. 


§  20)  INDICTMENT  41 

United  States  frequently  use  state  prisons,  whose  disci- 
pline is  controlled  by  the  state,  which  may  inflict  hard 
labor.3 

But  section  338  of  the  Penal  Code  provides  that  the 
omission  of  the  words  "hard  labor"  shall  not  prevent  the 
court  from  imposing  it.  This  provision  makes  felonies  and 
infamous  offenses  practically  the  same. 

Independent  of  statute,  a  felony  means  those  offenses 
punishable  by  forfeiture  of  lands  or  goods  with  capital  or 
other  punishment  superadded.4 

Under  section  1021  of  the  Revised  Statutes,5  no  indict- 
ment shall  be  found,  nor  shall  any  presentment  be  made, 
without  the  concurrence  of  at  least  twelve  grand  jurors. 
It  is  not,  however,  necessary  for  the  indictment  to  show 
upon  its  face  that  it  was  found  by  twelve  grand  jurors.  * 

The  Court  to  Try  Indictments 

Sections  1037,  1038  and  1039  of  the  Revised  Statutes7 
provided  for  the  transfer  of  cases  from  the  circuit  courts 
to  the  district  courts  of  the  same  district  for  trial  in  cer- 
tain cases,  and  vice  versa.  These  sections  are  not  specif- 
ically repealed  by  the  Judicial  Code  (Act  March  3,  1911,  c. 
231,  36  Stat.  1087  [U.  S.  Comp.  St.  Supp.  1911,  p.  128]), 
but  the  grant  of  all  criminal  jurisdiction  to  the  district 
court  by  section  24,  paragraph  2,  of  that  act,  and  the  aboli- 
tion of  the  circuit  court  by  section  289,  render  the  above 
sections  obsolete.  All  .criminal  cases  are  now  tried  in  the 
district  court. 

s  In  re  Karstendick,  93  U.  S.  396,  23  L.  Ed.  889.  See  "Indictment 
and  Information,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §§  4-8. 

4  Bannon  v.  TJ.  S.,  156  U.  S.  464,  15  Sup.  Ct.  467,  39  L.  Ed,  494. 
See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §§  2,  3;  Cent. 
Dig,  §§  4-23. 

s  U.  S.  Comp.  St.  1901,  p.  719. 

e  U.  S.  v.  Laws,  2  Low.  115,  Fed.  Gas.  No.  15,579 ;  Caha  v.  U.  S., 
152  U.  S.  211,  14  Sup.  Ct.  513,  38  L.  Ed.  415.  See  "Indictment  and 
Information,"  Dec.  Dig.  (Key-No.)  §§  56,  57;  Cent.  Dig.  §§  175-179. 

i  U.  S.  Comp.  St.  1901,  p.  723. 


42  DISTBICT  COUBT — CRIMINAL  JURISDICTION         (Ch.  3 


SAME— FORM    OF   INDICTMENT 

21.  An  indictment  in  the  federal  courts,  though  defective 
in  matter  of  form,  is  sufficient  if  the  necessary 
facts  of  time,  place,  and  circumstance  are  so  stated 
as  to  enable  the  accused  to  concert  his  defense  and 
protect  himself  from  a  second  prosecution,  and  so 
as  to  enable  the  court  to  decide  whether  it  is 
legally  sufficient  to  support  a  conviction. 

Section  1025,  Rev.  St.  U.  S.,8  provides  that  no  indict- 
ment found  and  presented  by  a  grand  jury  in  any  district 
or  circuit  or  other  court  of  the  United  States  shall  be 
deemed  insufficient,  nor  shall  the  trial,  judgment,  or  other 
proceeding  thereon  be  affected,  by  reason  of  any  defect  or 
imperfection  in  matter  of  form  only,  which  shall  not  tend 
to  the  prejudice  of  the  defendant. 

Under  this  federal  statute  of  jeofails,  indictments  in  the 
federal  courts  are  simple  and  devoid  of  archaic  terms  or 
cumbrous  forms.  At  the  same  time  they  must  be  so  defi- 
nite as  to  give  the  accused  notice  of  the  crime  charged 
against  him,  enable  him  to  concert  his  defense,  and  enable 
him  also  to  plead  former  acquittal  or  conviction  in  the 
event  of  a  second  trial  for  the  same  offense.  The  general 
requisites  of  an  indictment  are  well  defined  in  U.  S.  v. 
Cruikshank9  as  follows:  "In  criminal  cases  prosecuted 
under  the  laws  of  the  United  States,  the  accused  has  the 
constitutional  right  'to  be  informed  of  the  nature  and 
cause  of  the  accusation.'  Amend.  6.  In  United  States  v. 
Mills,  7  Pet.  142  [8  L.  Ed.  636],  this  was  construed  to 
mean  that  the  indictment  must  set  forth  the  offense  'with 
clearness  and  all  necessary  certainty,  to  apprise  the  accused 

«  U.  S.  Comp.  St.  1901,  p.  720. 

»  92  U.  S.  542,  23  L.  Ed.  588.  See  "Indictment  and  Information," 
Dec.  Dig.  (Key-No.)  §  71;  Cent.  Dig.  §§  193,  19%. 


§  21)  INDICTMENT  43 

of  the  crime  with  which  he  stands  charged' ;  and  in  United 
States  v.  Cook,  17  Wall.  174  [21  L.  Ed.  538],  that  'every 
ingredient  of  which  the  offense  is  composed  must  be  ac- 
curately and  clearly  alleged.'  It  is  an  elementary  principle 
of  criminal  pleading  that  where  the  definition  of  an  of- 
fense, whether  it  be  at  common  law  or  by  statute,  includes 
generic  terms,  it  is  not  sufficient  that  the  indictment  shall 
charge  the  offense  in  the  same  generic  terms  as  in  the 
definition,  but  it  must  state  the  species — it  must  descend 
to  particulars.  1  Archb.  Cr.  Pr.  &  PI.  291.  The  object  of 
the  indictment  is,  first,  to  furnish  the  accused  with  such  a 
description  of  the  charge  against  him  as  will  enable  him  to 
make  his  defense,  and  avail  himself  of  his  conviction  or 
acquittal  for  protection  against  a  further  prosecution  for 
the  same  cause;  and,  second,  to  inform  the  court  of  the 
facts  alleged,  so  that  it  may  decide  whether  they  are  suffi- 
cient in  law  to  support  a  conviction,  if  one  should  be  had. 
For  this,  facts  are  to  be  stated,  not  conclusions  of  law 
alone.  A  crime  is  made  up  of  acts  and  intent,  and  these 
must  be  set  forth  in  the  indictment  "with  reasonable  par- 
ticularity of  time,  place,  and  circumstances."  In  statu- 
tory offenses  the  language  of  the  statute  may  be  followed, 
but  this  does  not  dispense  with  the  necessity  of  setting 
out  the  specific  elements  of  the  offense  itself  with  sufficient 
definiteness  to  put  the  prisoner  on  his  defense,  and  to  en- 
able him  to  protect  himself  from  a  second  prosecution.10 
It  must  charge  the  time  and  place,  though  a  blank  as  to 
the  exact  date  is  not  always  fatal,  and  naming  the  cpunty 
instead  of  the  town  is  at  least  not  fatal  on  a  motion  in  ar- 
rest of  judgment.11  As  to  offenses  on  the  high  seas,  it  is 

10  TJ.  S.  v.  Fero  (D.  C.)  18  Fed.  901;    U.  S.  v.  Brazeau  (C.  C.)  78 
Fed.  464 ;    Peters  v.  U.  S.,  94  Fed.  127,  36  C.  C.  A.  105 ;    Cochran  v. 
U.  S.,  157  U.  S.  286,  15  Sup.  Ct.  628,  39  L.  Ed.  704 ;   Harper  v.  U.  S., 
170  Fed.  385,  95  C.  C.  A.  555 ;   Hauger  v.  U.  S.,  173  Fed.  54,  97  C.  C. 
A.  372;    U.  S.  v.  Raley  (D.  C.)  173  Fed.  159.     See  "Indictment  and 
Information,"  Dec.  Dig.  (Key-^io.)  §  110;  Cent.  Dig.  §§  289-19^. 

11  Ball  v.  U.  S.,  140  U.  S.  118,  11  Sup.  Ct.  761,  35  L.  Ed.  377;   Id., 


44  DISTRICT  COURT— CRIMINAL  JURISDICTION         (Ch.  3 

not  necessary  to  charge  the  special  place  where  they  hap- 
pened, for  the  general  allegation  that  they  were  on  the 
high  seas  and  out  of  the  jurisdiction  of  any  particular  state 
is  sufficient.12 

In  setting  out  a  draft  contained  in  a  registered  letter  al- 
leged to  have  been  stolen,  a  description  of  it,  giving  the 
name  of  the  maker,  the  payee,  the  payee's  address,  and  the 
place  where  it  is  payable,  with  an  allegation  that  further 
particulars  are  unknown  to  the  grand  jury,  is  sufficient; 
the  draft  having  been  destroyed.13  The  indictment  must 
give  the  name,  not  the  mere  initials,  of  the  accused;  but, 
if  the  sound  is  the  same,  the  fact  that  the  spelling  is  incor- 
rect does  not  vitiate  it.14  An  indictment  must  set  out  a 
written  document  in  haec  verba,  though,  as  to  certain  mat- 
ter made  unmailable  by  the  federal  statutes,  an  allegation 
in  the  indictment  that  it  is  improper  to  be  put  upon  the 
records  of  the  court  renders  it  discretionary  with  the  court 
whether  to  require  such  matter  to  be  set  out  in  the  in- 
dictment, and  the  exercise  of  such  discretion  is  not  review- 
able  ;  nor  does  a  failure  to  require  it  to  be  set  out  infringe 
the  prisoner's  constitutional  right  to  be  informed  of  the 
nature  and  cause  of  the  accusation.15  The  indorsement 

163  U.  S.  662,  16  Sup.  Ct  1192,  41  L.  Ed.  300;  Ledbetter  v.  IT.  S., 
170  U.  S.  606,  18  Sup.  Ct.  774,  42  L.  Ed.  1162;  U.  S.  v.  Conrad  (C. 
C.)  59  Fed.  458.  See  "Indictment  and  Information,"  Dec.  Dig.  (Key- 
No.)  §§  86,  87;  Cent.  Dig.  §§  230-255. 

12  ANDERSEN  v.  U.  S.,  170  U.  S.  481,  18  Sup.  Ct.  689,  42  L.  Ed. 
1116.  See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  86; 
Cent.  Dig.  §§  230-243. 

isRosencrans  v.  U.  S.,  165  U.  S.  257,  17  Sup.  Ct  302,  41  L.  Ed. 
70S.  See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  11; 
Cent.  Dig.  §§  193,  194. 

i*  U.  S.  v.  Upham  (C.  C.)  43  Fed.  68;  Faust  v.  U.  S.,  163  U.  S.  452, 
16  Sup.  Ct.  1112,  41  L.  Ed.  224.  See  "Indictment  and  Information," 
Dec.  Dig.  (Key-No.)  §  81;  Cent.  Dig.  §§  216-224. 

isU.  S.  v.  Noelke  (C.  C.)  1  Fed.  426;  U.  S.  v.  Watson  (D.  C.)  17 
Fed.  145 ;  Dunlop  v.  U.  S.,  165  U.  S.  486,  17  Sup.  Ct.  375,  41  L.  Ed. 
799 ;  Rosen  v.  U.  S.,  161  U.  S.  29,  16  Sup.  Ct  434,  480,  40  L.  Ed.  606. 
See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  81;  Cent* 
Dig.  §§  216-224. 


§  21)  INDICTMENT  45 

on  the  indictment  of  a  reference  to  the  statute  on  which 
the  district  attorney  supposes  it  to  be  based  is  not  a  part  of 
the  indictment  itself,  and  the  indictment  is  good  if  sustain- 
able under  some  other  statute.  16 

Section  5396  of  the  Revised  Statutes17  makes  special 
provision  for  an  indictment  charging  perjury,  and  this 
special  provision  is  not  modified  or  done  away  with  by 
section  1025  (U.  S.  Comp.  St.  1901,  p.  720). 18  Whether 
an  indictment  on  a  statute  must  negative  an  exception  in 
the  statute  depends  upon  the  form  of  the  statute  itself. 
If  the  exception  is  in  the  same  clause  as  the  offense,  so  in- 
terwoven as  to  be  inseparable,  the  indictment  should  nega- 
tive it;  but,  if  it  is  in  a  separate  clause,  then  the  exception 
is  matter  of  defense,  and  need  not  be  negatived  in  the  in- 
dictment.19 So  liberal  is  the  practice  under  section  1025 
that  the  omission  of  the  usual  phrase,  "contrary  to  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States"  is  mere  matter  of 
form,  and  does  not  vitiate  the  indictment.20 

Nor  is  it  necessary  to  use  the  word  "feloniously,"  when 
the  statute  itself  does  not  use  it.21  The  recital  in  the  in- 


i6  Williams  v.  U.  S.,  168  U.  S.  382,  18  Sup.  Ct.  92,  42  L.  Ed.  509; 
Rogers  v.  U.  S.,  180  Fed.  54,  103  C.  C.  A.  408,  31  L.  R.  A.  (N.  S.)  264. 
See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  34;  Cent. 
Dig.  §§  138-148. 

IT  U.  S.  Comp.  St  1901,  p.  3655. 

is  Markham  v.  U.  S.,  160  U.  S.  319,  16  Sup.  Ct.  288,  40  L.  Ed.  441. 
See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  111;  Cent. 
Dig.  §§  295-298. 

i»  Shelp  v.  U.  S.,  81  Fed.  694,  26  C.  C.  A.  570;  U.  S.  v.  Wood  (D. 
C.)  168  Fed.  438;  U.  S.  v.  Freed  (C.  C.)  179  Fed.  236.  See  "Indict- 
ment and  Information,"  Dec  Dig.  (Key-No.)  §  111;  Cent.  Dig.  §§  295- 
298. 

20  Frisbie  v.  U.  S.,  157  U.  S.  160,  15  Sup.  Ct  586.  39  L.  Ed.  657. 
See  "Indictment  and  Information"  Dec.  Dig.  (Key-No.)  §  32;    Cent. 
Dig.  §§  122-131. 

21  Bannon  v.  U.  S.,  156  U.  S.  464,  15  Sup.  Ct.  467,  39  L.  Ed.  494. 
See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  91;    Cent. 
Dig.  §§  261-265;   "Burglary,"  Cent.  Dig.  §  35;   "Forgery,"  Cent.  Dig. 
§  61. 


46  DISTEICT  COURT — CRIMINAL  JURISDICTION         (Ch.  3 

dictment  that  it  was  found  upon  the  oaths  of  the  grand 
jurors,  when  one  of  them  affirmed,  is  also  a  mere  matter 
of  form.22  An  indictment  need  not  set  out  regulations 
made  by  any  of  the  departments  under  statutory  authority, 
nor  need  they  be  offered  in  evidence,  for  the  courts  notice 
them  judicially.23  Charges  or  allegations  in  an  indict- 
ment which  are  not  necessary  may  be  disregarded,  but 
cannot  be  struck  out.  There  is  no  such  thing  as  amend- 
ing an  indictment.  It  is  supposed  to  be  the  act  of  the 
grand  jury,  and  it  is  not  for  the  court  to  say  what  charges 
in  it  induced  them  to  find  it,  and  what  not.  An  amend- 
ment by  the  court,  even  in  striking  out  words  which  could 
be  disregarded  as  surplusage,  makes  it  no  longer  an  in- 
dictment of  a  grand  jury,  makes  it  an  absolute  nullity,  de- 
prives the  court  of  jurisdiction  to  try  it,  and  entitles  the 
prisoner  to  be  released  on  habeas  corpus.24 

Each  count  of  an  indictment  must  charge  but  one  dis- 
tinct offense,  but  section  1024,  Rev.  St.  U.  S.,25  provides 
that  when  there  are  several  charges  against  any  person 
for  the  same  act  or  transaction,  or  for  two  or  more  acts  or 
transactions  connected  together,  or  for  two  or  more  acts 
or  transactions  of  the  same  class  of  crimes  or  offenses, 
which  may  be  properly  joined,  instead  of  having  several 
indictments  the  whole  may  be  joined  in  one  indictment,  in 
separate  counts;  and,  if  two  or  more  indictments  are  found, 
in  such  cases  the  court  may  order  them  to  be  consolidated. 

Although  each  count  must  charge  a  distinct  offense,  a 

22  Bram  v.  U.  S.,  168  U.  S.  532,  18  Sup.  Ct  183,  42  L.  Ed.  568.  See 
"Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  SO;  Cent.  Dig^ 
§  120. 

23Wilkins  v.  IT.  S.,  96  Fed.  837,  37  C.  C.  A.  588;  Caha  v.  U.  S., 
152  U.  S.  211,  14  Sup.  Ct.  513,  38  L.  Ed.  415.  See  "Indictment  and 
Information,"  Dec.  Dig.  (Key-No.)  §  61;  Cent.  Dig.  §  183. 

24  Ex  parte  BAIN,  121  U.  S.  1,  7  Sup.  Ct.  781,  30  L.  Ed.  849;   U. 
S.  v.  Linnier  (C.  C.)  125  Fed.  83,  87.    See  "Habeas  Corpus,"  Dec.  Dig. 
(Key-No.)  §  SO;   Cent.  Dig.  §  25;  "Indictment  and  Information," 
Dig.  (Key-No.)  §  159;    Cent.  Dig.  §§  505-514. 

25  U.  S.  Comp.  St.  1901,  p.  720. 


§  21)  INDICTMENT  47 

count  for  murder  does  not  become  liable  to  the  charge  of 
duplicity  by  reciting  that  the  murder  was  committed  by 
shooting  and  drowning/16  A  count  may  charge  as  a  single 
offense  a  series  of  acts  which  constitute  a  single  transac- 
tion, though  these  acts  may  become  separate  offenses  as 
regards  separate  persons,27  and  it  may  be  that  two  sup- 
posed offenses  may  be  merely  successive  acts  in  one  trans- 
action.28 A  single  count  may  charge  one  defendant  as  a 
principal,  and  another  as  accessory,  and  this  does  not  make 
it  liable  to  the  charge  of  duplicity.29 

Under  this  power  of  joinder,  separate  murders  may  be 
joined  in  one  indictment  under  separate  counts.30  Felon- 
ies and  misdemeanors  may  be  joined  also,  and  any  offenses 
if  of  the  same  general  class.31  There  is,  however,  a  limit 
to  this  power  of  joinder.  In  McElroy  v.  U.  S.32  the  Su- 
preme Court  held,  in  a  case  of  indictments  against  three 
parties  for  assault  with  intent  to  kill  one  party,  another 
indictment  against  the  same  parties  for  assault  with  intent 
to  kill  another  party,  another  indictment  against  the  same 
parties  for  arson  of  the  dwelling  house  of  one  party,  and 


26  ANDERSEN  v.  U.  S.,  170  U.  S.  481,  18  Sup.  Ct.  689,  42  L.  Ed. 
1116.  See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  125; 
Cent.  Dig.  §§  334-400. 

27TJ.  S.  v.  Scott  (C.  C.)  74  Fed.  213;  U.  S.  v.  Delaware,  L.  &  W. 
R.  Co.  (C.  C.)  152  Fed.  269,  273.  See  "Indictment  and  Information," 
Dec.  Dig.  (Key-No.)  §  125;  Cent.  Dig.  §§  334-400. 

28  u.  S.  v.  Fero  (D.  C.)  18  Fed.  901;  U.  S.  v.  Stone  (D.  C.)  49  Fed. 
848.  See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  125; 
Cent.  Dig.  §§  334-400. 

2»U.  S.  v.  Berry  (D.  C.)  96  Fed.  842.  See  "Indictment  and  Infor- 
mation," Dec.  Dig.  (Key-No.)  §  125;  Cent.  Dig.  §§  334-400. 

so  Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208. 
See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  130;  Cent. 
Dig.  §§  419-423. 

31  U.  S.  v.  Spintz  (C.  C.)  18  Fed.  377;    Williams  v.  U.  S.,  168  U.  S. 
382,  18  Sup.  Ct.  92,  42  L.  Ed.  509.     See  "Indictment  and  Informa- 
tion," Dec.  Dig.  (Key-No.)  §  131;  Cent.  Dig.  §  424- 

32  164  U.  S.  76,  17  Sup.  Ct.  31,  41  L.  Ed.  355.    See  "Criminal  Law," 
Dec.  Dig.  (Key-No.)  §  619;    Cent.  Dig.  §  1316;   "Indictment  and  In- 
formation," Cent.  Dig.  §  402. 


48  DISTRICT   COURT — CRIMINAL  JURISDICTION         (Ch.  3 

another  indictment  against  three  of  these  parties  for  arson 
of  the  dwelling  house  of  another  party,  that  these  could 
not  be  consolidated,  and  these  different  defendants  ar- 
raigned together  in  an  omnibus  trial  for  these  various  of- 
fenses. 

It  is  discretionary  with  the  court  to  compel  the  govern- 
ment to  elect  on  which  of  several  indictments  or  counts  it 
will  proceed,  and  this  may  be  done  at  any  time  during  the 
trial;  and  the  court  will  always  do  it  if  convinced  that  a 
trial  upon  too  many  indictments  or  counts  would  embar- 
rass the  defendant  in  his  defense.33 

A  corporation  and  its  officers  may  be  joined  in  an  indict- 
ment under  the  Elkins  act  for  rebating,  where  the  acts  of 
the  officers  are  criminally  imputed  to  the  corporation.84 

It  is  allowable  for  the  different  counts  to  refer  to  each 
other.35  The  fact  that  one  count  is  invalid,  because  based 
upon  a  complaint  made  on  information  only,  does  not  in- 
validate other  counts  made  upon  a  complaint  based  on  per- 
sonal knowledge.36 

83  Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208; 
Pierce  v.  U.  S.,  160  U.  S.  355,  16  Sup.  Ct.  321,  40  L.  Ed.  454;  Gardes 
v.  U.  S.,  87  Fed.  172,  30  C.  C.  A.  596 ;  Id.,  171  U.  S.  689,  19  Sup.  Ct 
884,  43  L.  Ed.  1179.  See  "Indictment  and  Information,"  Dec.  Dig. 
(Key-No.)  §  132;  Cent.  Dig.  §§  425-453. 

34  New  York  Cent.  &  H.  R.  Co.  v.  U.  S.,  212  U.  S.  481,  29  Sup.  Ct. 
304,  53  L.  Ed.  613.  See  "Indictment  and  Information"  Dec.  Dig. 
(Key-No.)  §  124;  Cent.  Dig.  §§  327-333. 

s  s  Blitz  v.  U.  S.,  153  U.  S.  308,  14  Sup.  Ct.  924,  38  L.  Ed.  725; 
Crain  v.  U.  S.,  162  U.  S.  625,  .16  Sup.  Ct  952,  40  L.  Ed.  1097 ;  U.  S. 
v.  Peters  (C.  C.)  87  Fed.  984;  Peters  v.  U.  S.,  94  Fed.  127,  36  C.  C. 
A.  105.  See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  99; 
Cent.  Dig.  §§  270,  270y2. 

se  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406,  45  L.  Ed.  577.  See 
"Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  100;  Cent.  Dig. 
§  271. 


§§  22-23)  INFOEMATION  49 

INFORMATION 

22.  Information  by  the  district  attorney  is  a  method  of 
criminal  procedure  less  formal  than  the  indict- 
ment, and  an  information  lies  in  any  cases  not 
capital  or  infamous. 


SAME— FORM  OF  INFORMATION 

23.  Information  must  conform  substantially  to  the  rules 
stated  above  in  relation  to  indictments. 

The  requisites  of  an  indictment  apply  to  informations. 
An  information  lies  in  any  cases  not  capital  or  infamous, 
as  above  defined.  Section  1022,  Rev.  St.  U.  S.,37  which 
provides  that  all  crimes  and  offenses  committed  against 
the  provisions  of  chapter  7,  tit.  "Crimes"  (this  chapter 
defining  offenses  against  the  elective  franchise),  which  are 
not  infamous,  may  be  prosecuted  by  indictment  or  by  in- 
formation filed  by  a  district  attorney,  must  be  construed 
in  conjunction  with  the  fifth  amendment  of  the  Constitu- 
tion, and  was  not  intended  to  mean  that  only  those  special 
offenses  could  be  proceeded  against  by  information.98  An 
information  must  be  by  leave  of  court,  and  the  judge  may 
give  the  accused  an  opportunity  to  show  cause  against  its 
filing.39  A  complaint,  to  justify  an  information,  must 
show  personal  knowledge  and  probable  cause.40 

37  U.  S.  Comp.  St.  1901,  p.  720. 

as  in  re  WILSON,  11~4  U.  S.  417,  5  Sup.  Ct.  935,  29  L.  Ed.  89.  See 
"Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §§  2,  S;  Cent.  Dig. 
§§  4-23. 

39  U.  S.  v.  Smith  (C.  C.)  40  Fed.  755.  See  "Indictment  and  Infor- 
mation," Dec.  Dig.  (Key-No.)  §  40;  Cent.  Dig.  §  151. 

4»  Johnston  v.  TJ.  S.,  87  Fed.  187,  30  C  C.  A.  612;  U.  S.  v.  Tu- 
reaud  (C.  C.)  20  Fed.  621.  See  "Indictment  and  Information,"  Dec. 

HUGHES  FED.PB.(2o  ED.) — 4 


50  DISTRICT  COURT — CRIMINAL  JURISDICTION        (Ch.  3 


THE  DEFENSE 

24.  The  method  of  defense  is  substantially  the  same  as  in 
the  state  courts,  i.  e.  by  motions  to  quash,  demur- 
rers, or  pleas,  dilatory  or  peremptory,  according 
to  the  character  of  the  defense. 

Prisoner  Entitled  to  Copy  of  Indictment  and  Lists  of  Jurors 

and  Witnesses  Before  Trial 

Section  1033  of  the  Revised  Statutes 41  provides  that, 
when  any  person  is  indicted  of  treason,  a  copy  of  the  in- 
dictment and  a  list  of  the  jury,  and  of  the  witnesses  to  be 
produced  on  the  trial  for  proving  the  indictment,  stating 
the  place  of  abode  of  each  juror  and  witness,  shall  be  de- 
livered to  him  at  least  three  entire  days  before  he  is  tried 
for  the  same.  When  any  person  is  indicted  of  any  other 
capital  offense,  such  copy  of  the  indictment  and  list  of  the 
jurors  and  witnesses  shall  be  delivered  to  him  at  least  two 
entire  days  before  the  trial.  This  requirement,  as  is  ob- 
vious from  its  language,  applies  only  to  capital  offenses. 
The  prisoner  must  ask  for  it  before  pleading  or  the  com- 
mencement of  the  trial,  or  he  will  be  held  to  have  waived 
it.42  If  a  witness  is  offered  whose  name  is  not  on  the  list 
furnished,  the  defendant  must  object  at  once,  and  not  wait 
until  the  witness  has  been  examined  in  chief,  as  such  ac- 
tion also  will  be  a  waiver.43 


Dig.  (Key-No.)  §  41;    Cent.  Dig.  §§  152-169;   "Criminal  Law,"  Cent. 
Dig.  §§  415-4S4,  460-477. 

41  U.  S.  Comp.  St.  1901,  p.  722. 

42  u.  S.  v.  Cornell,  Fed.  Gas.  No.  14,868 ;   TJ.  S.  v.  Curtis,  Fed.  Cas. 
No.  14,905.     See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  62S;    Cent. 
Dig.  §§  1409-1419. 

43  Hickory  v.  U.  S.,  151  U.  S.  303,  14  Sup.  Ct.  334,  38  L.  Ed.  170. 
See,  in  general,  Van  Duzee  v.  U.  S.  (D.  C.)  41  Fed.  571 ;   U.  S.  v.  Van 
Duzee,  140  U.  S.  169,  11  Sup.  Ct.  758,  35  L.  Ed.  399 ;    Logan  v.  U.  S., 
144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429.    See  "Criminal  Law," 
Dec.  Dig.  (Key-No.)  §  628;  Cent.  Dig.  §§  1409-1419. 


§  24)  THE   DEFENSES  51 

General  Defenses 

The  method  of  defense  in  criminal  cases  in  the  federal 
courts  is  practically  the  same  that  prevails  in  the  courts 
of  the  different  states,  and  the  general  rules  of  criminal 
procedure  are  applicable.  Dilatory  defenses  must  be  made 
first  and  promptly.  Defenses  of  this  sort  are  usually  made 
either  by  motion  to  quash  or  by  plea  in  abatement.  A  mo- 
tion to  quash  may  be  made  although  dependent  on  facts 
not  appearing  on  the  face  of  the  record,  and  evidence  may 
be  adduced  on  the  hearing  of  the  motion.  In  fact,  the 
mere  affidavit  to  a  written  motion  to  quash,  setting  out 
facts  not  admitted,  and  accompanied  by  no  evidence,  is 
not  sufficient  proof  to  sustain  it.  For  instance,  a  motion 
to  quash  an  indictment  on  the  ground  that  negroes  were 
improperly  excluded  from  the  jury  was  held  to  have  been 
properly  denied  when  the  only  proof  of  the  fact  alleged 
was  the  affidavit  to  the  written  motion.44  A  motion  to 
quash  is  addressed  to  the  discretion  of  the  court,  and  there- 
fore the  action  of  the  court  upon  it  is  not  usually  a  ground 
of  error.45  An  exception  to  the  make-up  of  a  grand  jury 
may  be  made  by  a  plea  in  abatement  or  by  motion  to 
quash,  and,  if  it  depends  upon  facts  not  shown  by  the  rec- 
ord, evidence  is  admissible  in  support  of  it,  but  it  must  be 
made  before  pleading  in  bar.46  A  plea  in  abatement  is 
also  the  proper  way  to  raise  questions  of  this  character  de- 
pendent on  outside  facts,  but  any  objection  to  the  composi- 
tion of  a  grand  jury  must  be  offered  at  the  earliest  oppor- 

44  Smith  v.  Mississippi,  162  TJ.  S.  592,  16  Sup.  Ct.  900,  40  L.  Ed. 
1082.    See  "Indictment  and  Information,"  Dec.  Dig.  (Key-No.)  §  140; 
Cent.  Dig.  §  475. 

45  Logan  v.  U.  S.,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429; 
Durland  v.  TJ.  S.,  161"IT.  S.  306,  16  Sup.  Ct.  508,  40  L.  Ed.  709.     See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  1149;    Cent.  Dig.   §§  3039- 
3043,  3058. 

46  Carter  v.  Texas,  177  TJ.  S.  442,  20  Sup.  Ct.  687,  44  L.  Ed.  839; 
Burehett  v.  U.  S.,  194  Fed.  821,  114  C.  C.  A.  525.     See  "Criminal 
Laic,"  Dec.  Dig.  (Key-No.)  §  279;    Cent.  Dig.  §§  643,  644;    "Indict- 
ment and  Information,"  Dec.  Dig.  (Key-No.)  §  139;   Cent.  Dig.  §  473. 


52  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  3 

tunity;  and  the  plea  in  abatement  is  too  late,  if  the  pris- 
oner had  any  earlier  opportunity  in  court  to  question  the 
manner  in  which  the  grand  jury  was  formed.47 

A  pjea  in  abatement  is  waived  by  pleading  in  bar.48 

Defenses  of  law  going  to  the  substance  are  raised  by 
demurrer,  but  under  section  1025,  heretofore  discussed, 
special  demurrers  to  mere  matters  of  form  are  practically 
superseded.49  If  a  demurrer  is  overruled,  the  proper  judg- 
ment is  respondeat  ouster.50 

In  Hillegass  v.  U.  S.51  it  was  held  that  when  a  demur- 
rer is  overruled  and  the  accused  is  allowed  to  plead  over, 
and  does  so,  he  cannot  assign  the  ruling  of  the  court  on 
his  demurrer  as  error,  as  pleading  over  is  a  waiver.  The 
court  must  have  had  in  mind  demurrers  in  matters  of  form. 

Under  the  act  of  March  2,  1907,52  jurisdiction  is  con- 
ferred on  the  Supreme  Court  to  review  at  the  instance  of 
the  government  certain  rulings  on  demurrers  involving 
the  construction  of  statutes  in  criminal  cases.  This  act  is 
not  mentioned  in  the  repealing  sections  of  either  the  Ju- 
dicial or  Penal  Codes ;  so  it  is  still  in  force.58 

After  dilatory  defenses  are  disposed  of,  and  the  prison- 
er is  arraigned,  section  1032,  Rev.  St.  U.  S.,54  provides 
that  when  any  person  indicted  for  any  offense  against  the 
United  States,  whether  capital  or  otherwise,  upon  his  ar- 
raignment stands  mute,  or  refuses  to  plead  or  answer 

47  Agnew  v.  U.  S.,  165  U.  S.  36,  17  Sup.  Ct.  235,  41  L.  Ed.  624. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  27.9;    Cent.  Dig.  §§  643, 
G44. 

48  TL  S.  v.  Gale,  109  U.  S.  65,  3  Sup.  Ct.  1,  27  L.  Ed.  857.     See 
"Criminal  Law,"  Dc.c.  Dig.  (Key-No.)  §  279;   Cent.  Dig.  §§  643,  644. 

4»  U.  S.  v.  Kilpatrick  (D.  C.)  16  Fed.  765.-  See  "Indictment  and 
Information,"  Dec.  Dig.  (Key-No.)  §  147;  Cent.  Dig.  §§  490-494. 

60  Section  1026,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  720). 

51183  Fed.  199,  105  C.  C.  A.  631.  See  "Indictment  and  Informar 
tion,"  Dec.  Dig.  (Key-No.)  §  197;  Cent.  Dig.  §  636. 

62  34  Stat.  1246,  c.  2564. 

es  U.  S.  v.  Winslow,  227  U.  S.  202,  33  Sup.  Ct  253,  57  L.  Ed,  > 

See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

6*U.  S.  Comp.  St.  1901,  p.  722. 


§  24)  THE   DEFENSE  53 

thereto,  it  shall  be  the  duty  of  the  court  to  enter  the  plea  of 
not  guilty  on  his  behalf,  in  the  same  manner  as  if  he  had 
pleaded  not  guilty  thereto,  and  when  the  party  pleads  not 
guilty,  or  such  plea-is  entered  as  aforesaid,  the  cause  shall 
be  deemed  at  issue,  and  shall,  without  further  form  or  cer- 
emony, be  tried  by  a  jury.  This  section  applies  to  infor- 
mations as  well  as  indictments.55 

The  record  in  a  criminal  case  must  show  both  an  ar- 
raignment and  a  plea;  otherwise  there  is  no  issue  for  the 
jury  to  try,  and  a  verdict  and  judgment  following  would 
be  fatally  defective.56  Nearly  all  defenses  going  to  the 
merits  may  be  made  under  a  plea  of  not  guilty,  but  there 
is  one  which,  in  its  very  nature,  should  be  pleaded  spe- 
cially. Under  amendment  5  of  the  Constitution,  it  is  pro- 
vided that  no  person  shall  be  subject,  for  the  same  offense, 
to  be  twice  put  in  jeopardy  of  life  or  limb.  A  defense  of 
once  in  jeopardy,  therefore,  could  hardly  be  proved  under 
a  plea  of  not  guilty,  for  the  prisoner  might  be  actually 
guilty,  and  yet  entitled  to  set  up  this  defense.  In  some 
cases,  in  fact,  such  a  plea  might  be  interposed  in  conjunc- 
tion with  a  plea  of  not  guilty  without  its  being  inconsis- 
tent. For  instance,  in  Thompson  v.  U.  S.,57  the  judge  dis- 
covered during  the  trial  of  the  case  that  one  of  the  mem- 
bers of  the  jury  had  been  on  the  grand  jury  which  found 
the  indictment.  He,  thereupon,  against  the  prisoner's  ob- 
jection, discharged  the  jury  and  continued  the  case  over 
for  a  new  trial.  On  the  second  trial  the  prisoner  pleaded 
that  the  proceedings  on  the  first  trial  entitled  him  to  raise 

55U.  S.  v.  Borger  (C.  C.)  7  Fed.  193;  In  re  Smith  (C.  C.)  13  Fed. 
25.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  266;  Cent.  Dig.  §§ 
619,  620. 

56  Shelp  v.  U.  S.,  81  Fed.  694,  26  C.  C.  A.  570;   Grain  v.  U.  S.,  162 
U.  S.  625,  16  Sup.  Ct.  952,  40  L.  Ed.  1097;    Johnson  v.  U.  S.,  225  TL 
S.  405,  32  Sup.  Ct.  748,  56  L.  Ed.  1142 ;  Beck  v.  U.  S.,  145  Fed.  625,  76 
C.  C.  A.  417.    See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §§  261,  1086; 
Cent.  Dig.  §§  612,  613,  2153,  2754. 

57  155  U.   S.  271,  15  Sup.  Ct.  73,  39  L.  Ed.  146.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  270,  291;   Cent.  Dig.  §§  624-628,  667. 


54  DISTRICT  CODBT — CRIMINAL  JURISDICTION         (Ch.  3 

the  defense  of  once  in  jeopardy.  The  Supreme  Court  held 
that  this  plea  was  not  inconsistent  with  the  plea  of  not 
guilty,  under  the  circumstances  of  that  special  case;  but 
it  also  held  that  the  plea  was  not  sustainable  on  the  facts, 
in  view  of  the  power  of  federal  courts  to  discharge  juries 
for  facts  developed  during  the  trial. 

Plea  of  Former  Jeopardy 

The  fifth  amendment  provides  that  no  person  shall  be 
subject,  for  the  same  offense,  to  be  twice  put  in  jeopardy 
of  life  or  limb.  This  constitutional  provision  has  been 
the  subject  of  some  interesting  decisions  in  the  federal 
courts.  The  fact  that  a  failure  to  testify  in  certain  cases 
before  Congress  is  punishable  as  a  contempt  does  not 
make  a  statute  void  which  also  punishes  it  as  a  misdemean- 
or, on  the  ground  of  being  twice  in  jeopardy,  for  the  pro- 
ceedings are  entirely  different  in  nature.58  On  the  other 
hand,  where  a  law  authorizes  a  procedure  in  rem  against 
property  for  violation  of  customs  laws,  and  also  a  direct 
criminal  proceeding  against  the  owner  of  the  property,  the 
acquittal  of  the  owner  is  a  bar  to  a  subsequent  proceeding 
against  the  property.59  The  provision  does  not  invalidate 
a  law  authorizing  the  infliction  of  a  severer  punishment  for 
a  second  offense.60  A  party  who  appeals  from  a  criminal 
decision  against  him,  and  secures  its  reversal,  cannot  on 
the  new  trial  plead  the  former  erroneous  trial  as  placing 
him  in  jeopardy.'1  Where  a  party  is  indicted  for  murder 

BS  In  re  Chapman,  166  U.  S.  661,  17  Sup.  Ct  677,  41  L.  Ed.  1154. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  162;  Cent.  Dig.  §  285. 

69  Coffey  v.  U.  S.,  116  U.  S.  436,  6  Sup.  Ct.  437,  29  L.  Ed.  684.  See 
"Judgment,"  Dec.  Dig.  (Key-No.)  §  151;  Cent.  Dig.  §§  1309,  1310. 

eo  Moore  v.  Missouri,  159  U.  S.  673,  16  Sup.  Ct  179,  40  L.  Ed.  301; 
Graham  v.  West  Virginia,  224  U.  S.  616,  32  Sup.  Ct.  583,  56  L.  Ed. 
917.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  162;  Cent.  Dig.  § 
285. 

«i  Ball  v.  U.  S.,  163  U.  S.  662,  16  Sup.  Ct  1192,  41  L.  Ed.  300; 
Murphy  v.  Massachusetts,  177  U.  S.  155,  20  Sup.  Ct.  639,  44  L.  Ed. 
711 ;  Steinman  v.  U.  S.,  185  Fed.  47,  107  C.  C.  A.  151.  See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  192,  193;  Cent.  Dig.  §§  376-378. 


§  25)  THE   TRIAL   AND   ITS   INCIDENTS  55 

on  an  indictment  which,  if  objected  to,  would  be  fatally 
defective,  and  goes  to  trial  on  the  merits,  without  except- 
ing to  the  indictment,  and  is  acquitted,  he  can  plead  once 
in  jeopardy  to  a  new  proceeding  by  the  government  on  a 
correct  indictment.62  Under  the  power  of  the  federal 
courts,  the  act  of  a  court  in  discharging  a  jury  after  finding 
that  one  of  the  jury  had  been  on  the  grand  jury  that  found 
the  indictment — the  discharge  of  the  jury  being  against  the 
protest  of  the  prisoner — does  not  violate  this  provision, 
and  the  prisoner  can  be  tried  a  second  time.63  Parol  evi- 
dence is  always  admissible,  and  sometimes  necessary,  to 
prove  the  facts  which  are  the  basis  of  this  plea.64 

Sometimes  the  same  acts  constitute  distinct  offenses,  in 
which  case  an  acquittal  on  one  does  not  bar  a  prosecution 
on  the  other.65 

Some  offenses  are  continuing  in  nature.  In  such  case 
an  acquittal  does  not  bar  a  prosecution  for  subsequent 
acts.68 

THE  TRIAL  AND  ITS  INCIDENTS 

25.  (a)  EVIDENCE— The  accused  is  entitled  to  be  con- 
fronted with  adverse  witnesses,  to  compulsory 
process  for  his  own,  and  to  testify  in  his  own  be- 
half; but  his  failure  to  testify  cannot  be  the  sub- 
ject of  unfavorable  presumptions  or  comments. 

«2  Ball  v.  TL  S.,  163  U.  S.  662,  16  Sup.  Ct.  1192,  41  L.  Ed.  300.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  186;  Cent.  Dig.  §§  812,  820, 
345-361. 

es  THOMPSON  v.  U.  S.,  155  TT.  S.  271,  15  Sup.  Ct.  73,  39  L.  Ed. 
146.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  182;  Cent.  Dig.  §§ 
S30-S32. 

6*  Durland  v.  U.  S.,  161  U.  S.  306,  16  Sup.  Ct.  508,  40  L.  Ed.  709. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  295;  Cent.  Dig.  §§  6T4- 
678. 

65  Gavleres  v.  U.  S.,  220  U.  S.  338,  31  Sup.  Ct.  421,  55  L.  Ed.  489. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  195;  Cent.  Dig.  §§  382, 
383. 

6«  U.  S.  v.  Swift  (D.  C.)  186  Fed.  1002.  See  "Criminal  Law,"  Dec. 
Dig.  (Key-No.)  §  198;  Cent.  Dig.  §  385. 


56  DISTRICT  COUET — CRIMINAL  JURISDICTION         (Ch.  3 

(b)  INSTRUCTIONS  AND  EXCEPTIONS  THERE- 

TO— Instructions  from  the  court  propound  the 
law  to  the  jury,  and  should  be  followed,  though  a 
verdict  of  acquittal  in  disregard  of  the  principles 
laid  down  will  stand.  Errors  in  them  prejudicial 
to  the  accused  may  be  availed  of  by  bill  of  excep- 
tions. 

(c)  VERDICT  AND  SENTENCE— The  proper  meth- 

od of  setting  aside  a  verdict  and  preventing  sen- 
tence is  by  motion  for  new  trial  if  the  errors  com- 
plained of  are  not  of  record,  or  motion  in  arrest  of 
judgment  if  they  are  of  record. 

Evidence 

The  sixth  amendment  entitles  the  accused  to  be  con- 
fronted with  the  witnesses  against  him,  and  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor.  Un- 
der this  provision,  section  878,  Rev.  St.  U.  S.,67  provides 
that  whenever  any  person  indicted  in  a  court  of  the  Unit- 
ed States  makes  affidavit  setting  forth  that  there  are 
witnesses  whose  evidence  is  material  to  his  defense ;  that 
he  cannot  safely  go  to  trial  without  them;  what  he  ex- 
pects to  prove  by  each  of  them;  that  they  are  within  the 
district  in  which  the  court  is  held,  or  within  one  hundred 
miles  of  the  place  of  trial ;  and  that  he  is  not  possessed  of 
sufficient  means,  and  is  actually  unable  to  pay  the  fees  of 
such  witnesses — the  court  in  term,  or  any  judge  thereof 
in  vacation,  may  order  that  such  witnesses  be  subpoenaed 
if  found  within  the  limits  aforesaid.  In  such  case  the  costs 
incurred  by  the  process  and  the  fees  of  the  witnesses  shall 
be  paid  in  the  same  manner  that  similar  costs  and  fees 
are  paid  in  case  of  witnesses  subpoenaed  in  behalf  of  the 
United  States. 

This  privilege  of  the  prisoner  to  be  confronted  with  the 
witnesses  has  been  jealously  guarded  by  the  courts  in 

«T  U.  S.  Comp.  St.  1901,  p.  668. 


§  25)  THE   TRIAL  AND   ITS  INCIDENTS  57 

criminal  cases.  For  instance,  in  a  proceeding  against  the 
receiver  of  stolen  stamps,  the  record  of  the  conviction  of 
the  thief  was  held  not  admissible  in  evidence  against  the 
receiver  of  the  stamps  for  the  purpose  of  showing  that  the 
ownership  of  the  stamps  was  in  the  United  States,  as  such 
record  would  have  deprived  the  prisoner  of  the  right  of 
confronting  witnesses  on  an  essential  element  of  the  of- 
fense.68 For  the  same  reason,  the  testimony  of  one  of 
the  government's  witnesses  who  had  gone  before  the  com- 
missioner at  the  preliminary  hearing  could  not  be  proved 
against  the  prisoner;  it  appearing  that  the  witness  had  es- 
caped, and  that  the  defendant  had  not  in  any  way  partici- 
pated in  or  connived  at  his  escape.69  If,  however,  the 
prisoner  himself  is  responsible  for  the  witness'  absence,  the 
testimony  could  be  proved  against  him.70  The  constitu- 
tional provision,  however,  does  not  apply  to  witnesses  in- 
troduced by  the  government  in  rebuttal,  as,  from  the  very 
nature  of  the  case,  it  could  not  have  been  intended  to  ap- 
ply to  such  a  case.71  It  does  not  apply  to  a  civil  suit  for 
the  value  of  property  forfeited  under  a  federal  law,  as  such 
procedure  is  not  in  its  nature  a  criminal  prosecution.72  It 
does  not  forbid  the  reception  in  evidence  of  dying  declara- 
tions, if  they  measure  up  to  the  requirements  prescribed 
by  the  common  law,  and  they  are  admissible  both  for  and 
against  the  accused.73 

es  Kirby  v.  U.  S.,  174  U.  S.  47,  19  Sup.  Ct.  574,  43  L.  Ed.  809.    See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  662;   Cent.  Dig.  §§  1538-1548. 

69  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct.  993,  44  L.  Ed.  1150. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  662;   Cent.  Dig.  §$  1538- 
1548. 

70  Reynolds' v.  U.  S.,  98  TJ.  S.  145,  25  L.  Ed.  244.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §  662;   Cent.  Dig.  §§  1538-1548. 

71  Goldsby  v.  U.  S.,  160  U.  S.  70,  16  Sup.  Ct.  216,  40  L.  Ed.  343. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  662;   Cent.  Dig.  §§  1538- 
1548. 

72  U.  S.  v.  Zucker,  161  U.  S.  475,  16  Sup.  Ct.  641,  40  L.  Ed.  777. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  662;   Cent.  Dig.  §§  1538- 
1548. 

73Mattox  v.  U.  S.,  146  U.  S.  140,  13  Sup.  Ct.  50,  36  L.  Ed.  917; 
Carver  v.  U.  S.,  160  U.  S.  553,  16  Sup.  Ct.  388,  40  L.  Ed.  532;    Id., 


58  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  3 

Another  constitutional  provision  which  is  rigidly  guard- 
ed is  contained  in  the  fifth  amendment,  which  provides 
that  no  person  shall  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself.  Under  this  the  courts  have 
held  that  the  confessions  of  the  accused  cannot  be  used 
against  him  unless  it  is  clear  that  they  are  entirely  volun- 
tary, and  that  they  have  been  made  without  any  induce- 
ment held  out  to  the  prisoner,  or  any  improper  influences 
brought  to  bear  upon  him ;  though  the  mere  fact  that  they 
are  made  while  in  custody  is  not  in  itself  sufficient  to  pre- 
vent them  from  being  voluntary.74 

Under  the  decisions  of  the  Supreme  Court,  there  is  a 
strong  presumption  of  innocence,  and  the  prisoner  must 
be  guilty  beyond  a  reasonable  doubt.  Even  the  ordinary 
presumption  of  sanity  does  not  negative  this,  but  the  bur- 
den is  on  the  government  to  prove  the  crime  beyond  a 
reasonable  doubt,  and  the  capacity  of  the  prisoner  to  com- 
mit crime  is  part  of  the  elements  of  the  crime.76  The  gen- 
eral good  character  of  the  prisoner  is  always  admissible, 
and  may  be  considered  as  itself  sufficient  to  raise  a  reason- 
able doubt,  though  the  rest  of  the  evidence,  taken  alone, 
would  not  have  left  room  for  such  a  doubt.78  The  flight 
of  the  prisoner,  or  concealment  of  suspicious  circumstanc- 
es, is  valuable  as  part  of  the  chain  of  evidence,  but  is  not 
sufficient  alone  to  raise  a  legal  presumption  of  guilt.77 

164  TJ.  S.  694,  17  Sup.  Ct.  228,  41  L.  Ed.  602.  See  "Homicide,"  Dec. 
Dig.  (Key-No.)  §  200;  Cent.  Dig.  §§  425-427. 

74  Pierce  v.  U.  S.,  160  U.  S.  355,  16  Sup.  Ct.  321,  40  L.  Ed.  454; 
Dram.  v.  U.  S.,  168  U.  S.  532,  18  Sup.  Ct  183,  42  L.  Ed.  568 ;  Shaw 
v.  U.  S.,  180  Fed.  348,  103  C.  C.  A.  494.  See  "Criminal  Law,"  Dec. 
Dig.  (Key-No.)  §  519;  Cent.  Dig.  §§  1163-1114. 

7  5  Davis  v.  U.  S.,  160  U.  S.  469,  16  Sup.  Ct.  353,  40  L.  Ed.  4S»9; 

Matheson  v.  U.  S.,  227  U.  S.  540,  33  Sup.  Ct.  355,  57  L.  Ed. .  See 

"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §§  311,  331;  Cent.  Dig.  §§  742- 
7-U. 

76  Edgington  v.  U.  S.,  164  U.  S.  361,  17  Sup.  Ct  72,  41  L.  Ed.  467; 
Searway  v.  U.  S.,  184  Fed.  716,  107  C.  C.  A.  635.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  376,  SSI;   Cent.  Dig.  §§  836-846. 

77  Hickory  v.  U.  S.,  160  U.  S.  408,  16  Sup.  Ct  327,  40  L.  Ed.  474; 


§  25)  THE   TRIAL   AND   ITS   INCIDENTS  59 

Where  several  are  indicted  jointly  for  a  conspiracy  or  a 
joint  crime,  the  acts  and  statements  of  the  different  de- 
fendants are  evidence  against  each  other,  up  to  the  point 
when  the  offense  is  consummated,  or  the  idea  of  commit- 
ting the  offense  abandoned,  but  not  thereafter.78 

Prisoner  May,  but  Need  Not,  Testify 

By  the  act  of  March  16,  1878,79  it  is  provided  that  in 
the  trial  of  all  indictments,  informations,  complaints,  and 
other  proceedings  against  persons  charged  with  the  com- 
mission of  crimes,  offenses,  and  misdemeanors,  in  the 
United  States  courts,  territorial  courts,  and  courts-martial, 
and  courts  of  inquiry,  in  any  state  or  territory,  including 
the  District  of  Columbia,  the  person  so  charged  shall,  at 
his  own  request,  but  not  otherwise,  be  a  competent  wit- 
ness. And  his  failure  to  make  such  request  shall  not  cre- 
ate any  presumption  against  him.  The  court  is  extreme- 
ly careful,  under  this  statute,  to  forbid  any  comments 
whatever  upon  the  failure  of  the  accused  to  testify.  In 
fact,  in  one  case  the  Supreme  Court  said  that  all  reference 
to  his  failure  to  testify  must  be  rigidly  excluded.80  When 
the  prisoner  does  take  the  witness  stand,  his  testimony  is 
entitled  to  be  considered  fairly;  and  the  judge  must  not 
make  hostile  comments  upon  the  fact  that  he  is  the  ac- 
cused, or  say  to  the  jury  that  such  fact  alone  should  de- 
stroy or  seriously  impair  the  weight  of  his  testimony, 

Alberty  v.  U.  S.,  1G2  U.  S.  499,  16  Sup.  Ct.  864,  40  L.  Ed.  1051;  Starr 
v.  U.  S.,  164  U.  S.  627,  17  Sup.  Ct.  223,  41  L.  Ed.  577.  See  "Criminal 
Laic,"  Dec.  Dig.  (Key-No.)  §  351;  Cent.  Dig.  §  737. 

7  s  Logan  v.  U.  S.,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429; 
Brown  v.  U.  S.,  150  U.  S.  93,  14  Sup.  Ct.  37,  37  L.  Ed.  1010;  St.  Clair 
v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct.  1002,  38  L.  Ed.  936 ;  Wiborg  v. 
U.  S.,  163  U.  S.  632,  16  Sup.  Ct.  1127,  1197,  41  L.  Ed.  2S9;  Fitzpat- 
rick  v.  U.  S.,  178  U.  S.  304,  20  Sup.  Ct.  944,  44  L.  Ed.  1078 ;  Steers  v. 
U.  S.,  192  Fed.  1,  112  C.  C.  A.  423.  See  "Criminal  Law,"  Dec.  Dig. 
(Key-No.)  §§  422,  424;  Cent.  Dig.  §§  984-988,  1002-1010. 

79  u.  S.  Comp.  St.  1901,  p.  660. 

so  WILSON  v.  U.  S.,  149  U.  S.  60,'  13  Sup.  Ct.  765,  37  L.  Ed.  650. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  721;  Cent.  Dig.  §  1672. 


60  DISTRICT   COURT — CRIMINAL  JURISDICTION         (Ch.  3 

though  it  can  call  the  attention  of  the  jury  to  the  fact  that 
the  prisoner  would  have  a  strong  motive  to  testify  in  his 
own  interest.  How  far  the  court  can  go  in  this  particular 
is  difficult  to  define.81  If  a  prisoner  waives  his  right  of 
exemption  from  testifying,  and  takes  the  witness  stand,  he 
takes  it  cum  onere,  and  subjects  himself  to  cross-examin- 
ation, like  any  other  witness.82 

This  protection  applies  simply  to  statements  improperly 
extorted  from  the  accused.  It  does  not  apply  to  evidence 
obtained  from  an  examination  of  his  person,  or  to  evidence 
from  his  private  papers,  though  improperly  obtained.83 

The  fact  that  a  decoy  is  used  to  establish  the  guilt  of  a 
prisoner  is  not  sufficient  to  exclude  evidence  of  such  de- 
coy, and  the  prisoner  may  be  convicted  upon  it.84 

The  accused  must  be  present  during  the  trial,  and  this 
is  a  right  which  he  cannot  waive.86  This,  however,  ap- 
plies only  to  the  court  of  original  jurisdiction.  When  an 
appellate  court  affirms  the  action  of  the  lower  court,  and 
enters  an  order  to  that  effect,  it  is  not  necessary  for  the 
accused  to  be  present,  though  the  order  of  the  appellate 

si  Hicks  v.  TJ.  S.,  150  U.  S.  442,  14  Sup.  Ct.  144,  37  L.  Ed.  1137; 
Reagan  v.  U.  S.,  157  U.  S.  301,  15  Sup.  Ct.  CIO,  39  L.  Ed.  709;  Hick- 
ory v.  U.  S.,  160  U.  S.  408,  16  Sup.  Ct.  327,  40  L.  Ed.  474 ;  Allison  v. 
U.  S.,  160  U.  S.  203,  16  Sup.  Ct.  252,  40  L.  Ed.  395.  See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  743,  786;  Cent.  Dig.  §§  1722,  1895-1901. 

82  Fitzpatrick  v.  U.  S.,  178  U.  S.  304,  20  Sup.  Ct.  944,  44  L.  Ed. 
1078;  Sawyer  v.  U.  S.,  202  U.  S.  150,  26  Sup.  Ct.  575,  50  L.  Ed. 
972,  6  Ann.  Gas.  269.  See  "Witnesses,"  Dec.  Dig.  (Key-No.)  §  277/ 
Cent.  Dig.  §§  925,  979-984. 

ss  Holt  v.  U.  S.,  218  U.  S.  245,  31  Sup.  Ct  2,  54  L.  Ed.  1021,  2O 
Ann.  Cas.  1138 ;  Ripper  v.  U.  S.,  178  Fed.  24,  101  C.  C.  A.  152 ;  Id., 
179  Fed.  497,  103  C.  C.  A.  478.  See  "Criminal  Laic,"  Dec.  Dig.  (Key- 
No.)  §§  393-395;  Cent.  Dig.  §§  871-877. 

s*  Andrews  v.  TJ.  S.,  162  U.  S.  420,  16  Sup.  Ct.  798,  40  L.  Ed.  1023; 
Price  v.  U.  S.,  165  U.  S.  311,  17  Sup.  Ct.  366,  41  L.  Ed.  727.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  37;  Cent.  Dig.  §  42;  "Bur- 
glary," Cent.  Dig.  §  23;  "Post  Office,"  Dec.  Dig.  (Key-No.)  §  42 ; 
Cent.  Dig.  §§  52,  61. 

SB  Hopt  v.  Utah,  110  TJ.  S.  574,  4  Sup.  Ct.  202,  28  L.  Ed.  262.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  636;  Cent.  Dig.  §§  1465-1482* 


§  25)  THE   TKIAL   AND   ITS   INCIDENTS  61 

court  names  the  time  and  place  of  execution,  as  that  is  not 
technically  a  part  of  the  judgment.86 

The  granting  or  refusing  of  a  continuance  is  a  matter 
of  discretion  in  the  trial  court,  and  not  reviewable.87 

It  is  the  duty  of  the  court  to  curb  any  improper  or  un- 
fair remarks  of  counsel  during  the  progress  of  a  criminal 
trial.  For  instance,  in  Hall  v.  U.  S.,88  the  prosecuting  at- 
torney, in  commenting  upon  the  fact  which  had  come  out 
in  reference  to  the  character  of  the  prisoner  during  the 
trial — that  he  had  been  tried  for  killing  a  negro  in  Missis- 
sippi and  acquitted — remarked  that  trials  in  the  state  of 
Mississippi  of  a  white  man  for  killing  a  negro  were  farces. 
The  defendant  excepted  to  these  remarks,  and  the  Su- 
preme Court  held  that  they  were  improper,  and  awarded 
him  a  new  trial  on  that  ground. 

So,  in  Williams  v.  U.  S.,89  where  the  defendant  was  be- 
ing tried  for  accepting  bribes  to  admit  Chinese  into  this 
country,  the  prosecuting  attorney,  in  answer  to  the  point 
made  by  the  defendant  that  more  had  been  sent  back  dur- 
ing his  tenure  of  office  than  before  or  since,  remarked  that, 
no  doubt,  every  Chinese  woman  who  did  not  pay  Williams 
was  sent  back.  Exception  ( was  taken  to  this  statement 
and  overruled,  and  the  Supreme  Court  granted  a  new  trial 
on  that,  among  other  grounds. 

The  proper  method  of  taking  advantage  of  such  points 
as  this  is  by  a  bill  of  exceptions  setting  out  the  necessary 

se  Schwab  v.  Berggren,  143  U.  S.  442,  12  Sup.  Ct  525,  36  L.  Ed. 
218.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  987;  Cent.  Dig.  §§ 
2511,  2531. 

ST  Isaacs  v.  U.  S.,  159  U.  S.  487,  16  Sup.  Ct.  51,  40  L.  Ed.  229;  Fi- 
delity &  Deposit  Co.  v.  L.  Bucki  &  Son  Lumber  Co.,  189  U.  S.  135, 
23  Sup.  Ct.  582,  47  L.  Ed.  744.  See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  §  1151;  Cent.  Dig.  §§  3045-3049. 

ss  150  U.  S.  76,  14  Sup.  Ct.  22,  37  L.  Ed.  1003.  Compare  Sawyer 
v.  U.  S.,  202  U.  S.  150,  26  Sup.  Ct.  575,  50  L.  Ed.  972,  6  Ann.  Gas. 
269.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  722y2;  Cent.  Dig. 
§  1675. 

8»  168  U.  S.  382,  18  Sup.  Ct.  92,  42  L.  Ed.  509.  See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  722,  726;  Cent.  Dig.  §§  1674,  1681. 


62  DISTRICT  COURT — CRIMINAL  JURISDICTION         (Ch.  3 

facts  to  show  its  relevancy  and  the  ruling  of  the  court 
thereon.90 

Instructions  to  the  Jury 

In  criminal  cases  the  jury  should  take  the  law  from  the 
court,  and  should  follow  its  instructions.  They  are  not 
judges  of  both  law  and  fact  under  the  federal  practice,  but 
if  they  disregard  the  instructions,  and  bring  in  a  verdict  of 
acquittal  in  the  teeth  of  the  instructions,  the  government 
has  no  remedy.  Despite  this  result,  if  they  choose  to  dis- 
regard their  duty,  it  is  none  the  less  their  duty  to  take  the 
law  from  the  court,  though  in  a  criminal  case  the  court 
cannot  peremptorily  instruct  the  jury  to  bring  in  a  ver- 
dict of  guilty.91  In  the  federal  practice  the  judge  can  ex- 
press his  opinion  on  questions  of  fact,  but  in  such  case  he 
must  caution  the  jury  that  his  opinion  is  not  binding  up- 
on them,  and  that  they  are  sole  judges  of  the  fact.92  He 
must  not,  however,  comment  in  an  argumentative  or  pas- 
sionate way  upon  the  facts  in  such  manner  as  to  prejudice 
the  jury  against  the  prisoner  or  interfere  too  eagerly  in 
the  conduct  of  the  case; 93  and  it  is  error  in  him  to  com- 
ment on  the  witnesses  called  to  prove  the  defendant's 
character,  and  to  tell  the  jury  to  disregard  their  evidence, 
on  the  ground  that  they  themselves  are  lacking  in  charac- 
ter, for  the  jury  is  just  as  much  judge  of  the  credibility  of 
witnesses  on  the  subject  of  character  as  on  any  other  sub- 
so  WILSON  v.  U.  S.,  149  U.  S.  60,  13  Sup.  Ct.  765,  37  L.  Ed.  650. 
See  "Criminal  Laic,"  Dec.  Dig.  (Key-No.)  §  1090;  Cent.  Dig.  §  2819. 
01  SPARF  v.  U.  S.,  156  U.  S.  51,  15  Sup.  Ct  273,  39  L.  Ed.  343. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  753;  Cent.  Dig.  §§  1713, 
1727-1730. 

82  Simmons  v.  U.  S.,  142  U.  S.  148,  12  Sup.  Ct.  171,  35  L.  Ed.  968. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  762;  Cent.  Dig.  §§  17S1, 
1750,  1754,  1758,  1759,  1769. 

as  Starr  v.  U.  S.,  153  U.  S.  614,  14  Sup.  Ct.  919,  38  L.  Ed.  841; 
Rudd  v.  U.  S.,  173  Fed.  912,  97  C.  C.  A.  462 ;  Adler  v.  U.  S.,  182  Fed. 
464,  104  C.  C.  A.  608.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  § 
656;  Cent.  Dig.  §§  1524-1533. 


§  25)  THE   TRIAL   AND   ITS   INCIDENTS  63 

ject."  The  prisoner  must  be  proved  guilty  beyond  a 
reasonable  doubt,  and  it  is  for  the  court  to  instruct  the 
jury  what  constitutes  a  reasonable  doubt,  though  it  is  dif- 
ficult to  define  it  as  an  abstract  proposition.95  If  the  pris- 
oner wishes  the  jury  to  be  instructed  on  any  proposition 
of  law,  he  must  ask  the  instruction  of  the  court.  It  is  not 
error  in  the  court,  if  it  does  not  instruct  on  all  propositions 
of  law  that  may  be  involved,  when  it  has  not  been  asked  to 
do)  so.96  If,  however,  the  legal  proposition  which  the 
prisoner  wishes  to  be  propounded  to  the  jury  is  covered  by 
another  instruction,  or  by  the  general  charge  which  the 
court  gives,  it  is  not  error  in  the  court  to  refuse  to  repeat 
it.97 
Error 

The  proper  method  of  embodying  in  the  record  any  er- 
rors in  the  court  in  reference  to  the  instructions  is  by  a 
bill  of  exceptions.  In  fact,  this  is  probably  the  most  com- 
mon use  of  a  bill  of  exceptions.  Section  953  of  the  Revised 
Statutes,98  as  last  amended,  provides  "that  a  bill  of  excep- 
tions allowed  in  any  cause  shall  be  deemed  sufficiently  au- 
thenticated if  signed  by  the  judge  of  the  court  in  which 

a*  Smith  v.  U.  S.,  161  IT.  S.  85,  16  Sup.  Ct.  483,  40  L.  Ed.  626.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  742;  Cent.  Dig.  §§  1138,  1719- 
1721. 

»5Hopt  v.  Utah,  120  U.  S.  430,  7  Sup.  Ct  614,  30  L.  Ed.  708; 
Dunbar  v.  U.  S.,  15B  U.  S.  185,  15  Sup.  Ct.  325,  39  L.  Ed.  390.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  789;  Cent.  Dig.  §§  1846-1849, 
1904-1922,  1960,  1967. 

se  Goldsby  v.  U.  S.,  160  TJ.  S.  70,  16  Sup.  Ct.  216,  40  L.  Ed.  343. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  824;  Cent.  Dig.  §§  1996- 
2004. 

97  Coffin  v.  U.  S.,  162  U.  S.  664,  16  Sup.'Ct.  943,  40  L.  Ed.  1109; 
White  v.  U.  S.,  164  U.  S.  100,  17  Sup.  Ct.  38,  41  L.  Ed.  365 ;  Humes 
v.  U.  S.,  170  U.  S.  210,  18  Sup.  Ct.  602,  42  L.  Ed.  1011;  TJ.  S.  v. 
Holt  (C.  C.)  168  Fed.  141;  Holt  v.  TJ.  S.,  218  U.  S.  245,  31  Sup.  Ct. 
2,  54  L.  Ed.  1021,  20  Ann.  Cas.  1138.  See  "Criminal  Law,"  Dec.  Dig. 
(Key-No.)  §  829;  Cent.  Dig.  2011. 

»s  TJ.  S.  Comp.  St.  1901,  p.  696;  Guardian  Assur.  Co.  of  London  v. 
Quintana,  227  U.  S.  100,  33  Sup.  Ct.  236,  57  L.  Ed. .  See  "Crim- 
inal Law,"  Dec.  Dig.  (Key-No.)  §  1090;  Cent.  Dig.  §  2818. 


64  DISTRICT  COURT — CRIMINAL  JURISDICTION         ( Ch.  3 

the  cause  was  tried,  or  by  the  presiding  judge  thereof  if 
more  than  one  judge  sat  at  the  trial  of  the  cause,  without 
any  seal  of  the  court  or  judge  annexed  thereto.  And  in 
case  the  judge  before  whom  the  cause  has  heretofore  been 
or  may  hereafter  be  tried  is,  by  reason  of  death,  sickness, 
or  other  disability,  unable  to  hear  and  pass  upon  the  mo- 
tion for  a  new  trial  and  allow  and  sign  said  bill  of  ex- 
ceptions, then  the  judge  who  succeeds  such  trial  judge,  or 
any  other  judge  of  the  court  in  which  the  cause  was  tried, 
holding  such  court  thereafter,  if  the  evidence  in  such  cause 
has  been  or  is  taken  in  stenographic  notes,  or  if  the  said 
judge  is  satisfied  by  any  other  means  that  he  can  pass  upon 
such  motion  and  allow  a  true  bill  of  exceptions,  shall  pass 
upon  said  motion  and  allow  and  sign  such  bill  of  excep- 
tions; and  his  ruling  upon  such  motion  and  allowance  and 
signing  of  such  bill  of  exceptions  shall  be  as  valid  as  if 
such  ruling  and  allowance  and  signing  of  such  bill  of  ex- 
ceptions had  been  made  by  the  judge  before  whom  such 
cause  was  tried;  but  in  case  said  judge  is  satisfied  that, 
owing  to  the  fact  that  he  did  not  preside  at  the  trial,  or  for 
any  other  cause,  that  he  cannot  fairly  pass  upon  said  motion, 
and  allow  and  sign  said  bill  of  exceptions,  then  he  may,  in 
his  discretion,  grant  a  new  trial  to  the  party  moving  there- 
for." 

An  exception  to  an  instruction  or  to  a  charge  must  point 
out  definitely  the  part  excepted  to,  as  it  is  not  the  duty  of 
the  court  to  search  through  a  long  charge  or  instruction 
for  error."  If  the  defendant  asks  a  number  of  instruc- 
tions which  are  refused,  a  general  exception  to  their  re- 
fusal fails  if  any  one  of  them  is  wrong.  He  must  specify 
the  separate  errors  in  connection  with  each  instruction.1 

so  Edgington  v.  TJ.  S.,  164  U.  S.  361,  17  Sup.  Ct.  72,  41  L.  Ed.  467; 
Richards  v.  U.  S.,  175  Fed.  911,  99  C.  C.  A.  401.  See  "Criminal 
Law,"  Dec.  Dig.  (Kcji-No.)  §  1059;  Cent.  Dig.  §  2671. 

i  Thiede  v.  Utah,  159  U.  S.  510,  16  Sup.  Ct.  62,  40  L.  Ed.  237.  See 
"Criminal  Laic,"  Dec.  Dig.  (Key-No.)  §  1059;  Cent.  Dig.  §  2671. 


§  25)  THE   TRIAL   AND  ITS  INCIDENTS  65 

A  bill  of  exceptions  to  the  refusal  of  the  court  to  grant  the 
instructions  asked  by  the  defendant  should  set  out  the  in- 
structions actually  given;  for,  as  the  presumptions  are  in 
favor  of  the  correctness  of  proceedings  in  the  lower  court, 
the  appellate  court  might  otherwise  presume  that  the  in- 
structions actually  given  covered  the  points  embodied  in 
the  instructions  of  the  accused.2  The  instructions  must 
be  incorporated  in  the  bill  of  exceptions  so  as  to  enable  the 
appellate  court  to  see  wherein  there  was  error.3  It  is  al- 
lowable in  federal  practice  to  join  all  of  the  exceptions  in 
one  bill,  but  this  does  not  dispense  with  the  necessity  of 
taking  separate  exceptions  to  the  separate  rulings  and 
pointing  out  the  separate  errors  relied  on.4 

The  bill  of  exceptions  need  not  state  that  it  contains  all 
the  evidence,  if  the  fact  otherwise  appears.6 

The  Verdict 

It  is  allowable  for  the  judge  to  recall  the  jury  and  give 
them  further  instructions,  and  even  to  impress  on  them  the 
importance  of  coming  to  an  agreement,  and  of  making  mu- 
tual concessions  for  that  purpose.6  When  there  is  more 
than  one  count  in  an  indictment,  the  jury  may  agree  to 
bring  in  a  verdict  on  one  or  more  counts,  though  they  dis- 

2  Andrews  v.  U.  S.,  162  U.  S.  420,  16  Sup.  Ct.  798,  40  L.  Ed.  1023, 
See  "Criminal  Laic,"  Dec.  Dig.  (Key-No.)  §  1091;  Cent.  Dig.  §§  2818, 
2940-2945. 

3  Clune  v.  U.  S.,  159  U.  S.  590,  16  Sup.  Ct.  125,  40  L.  Ed.  269.    See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)   §§  1091,  1122;    Cent.  Dig.   §§ 
2818,  2940-2945. 

4  LEES  v.  U.  S.,  150  U.  S.  476,  14  Sup.  Ct.  163,  37  L.  Ed.  1150; 
Richardson  v.  U.   S.,  181  Fed.  1,   104  C.  C.  A.  69.     See  "Criminal 
Law,"  Dec.  Dig.  (Key-No.)  §§  1091,  1122;    Cent.  Dig.  §§  2818,  2940- 
2945. 

s  Clyatt  v.  U.  S.,  197  U.  S.  207,  25  Sup.  Ct.  429,  49  L.  Ed.  726.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  1122;  Cent.  Dig.  §§  2940-2945. 

e  Allis  v.  U.  S.,  155  U.  S.  117,  15  Sup.  Ct.  36,  39  L.  Ed.  91 ;  Allen 
v.  U.  S.,  164  U.  S.  492,  17  Sup.  Ct.  154,  41  L.  Ed.  528.  Compare 
Burton  v.  U.  S.,  196  U.  S.  283,  25  Sup.  Ct.  243,  49  L.  Ed.  482.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  863;  Cent.  Dig.  §§  2065-2067. 

HUGHES  FED.PB.(2o  ED.) — 5 


66  DISTRICT   COURT— CRIMINAL  JURISDICTION          (Ch.  3 

agree  as  to  others,  and  where  there  are  separate  defendants 
they  may  acquit  some  and  convict  others ;  and,  even  when 
the  case  goes  to  the  appellate  court,  the  court  may  set 
aside  the  verdict  as  to  one  count,  and  let  it  stand  as  to 
others.7  A  verdict  finding  the  defendant  guilty  on  some 
counts,  and  not  mentioning  the  other  counts  at  all,  is  an 
acquittal  on  the  other  counts.8  A  general  verdict  of  guilty 
is  valid  if  any  count  is  good,  and  convicts  on  all  the 
counts.9  Section  1035,  Rev.  St.  U.  S.,10  provides  that  in 
all  criminal  cases  the  defendant  may  be  found  guilty  of 
any  offense  the  commission  of  which  is  necessarily  in- 
cluded in  that  with  which  he  is  charged  in  the  indictment, 
or  may  be  found  guilty  of  an  attempt  to  commit  the  of- 
fense so  charged,  provided  that  such  attempt  be  itself  a 
separate  offense.  Under  this  section  it  is  proper  for  the 
court  to  instruct  the  jury  that  it  should  not  find  the  pris- 
oner guilty  of  a  lesser  offense  where  there  is  no  evidence 
whatever  to  show  that  the  lesser  offense  was  actually  com- 
mitted,11 but,  if  there  is  any  evidence  at  all  that  a  lesser 
offense  was  committed,  the  court  must  not  take  this  ques- 
tion from  the  jury,  and  must  not  instruct  them  against 
finding  a  verdict  of  the  lesser  offense.12  The  jury  may,  by 

7  St.  Glair  v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct.  1002,  38  L.  Ed.  936 ; 
Bucklin  v.  U.  S.,  159  U.  S.  680,  16  Sup.  Ct  182r  40  L.  Ed.  304 ; 
Ballew  v.  U.  S.,  160  U.  S.  187,  16  Sup.  Ct.  263,  40  L.  Ed.  388;  Sel- 
vester  v.  U.  S.,  170  U.  S.  262,  18  Sup.  Ct.  580,  42  L.  Ed.  1029.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  878;  Cent.  Dig.  §§  2098-2101. 

s  Jolly  v.  U.  S.,  170  U.  S.  402,  18  Sup.  Ct.  624,  42  L.  Ed.  1085.  See 
"Criminal  Laic,"  Dec.  Dig.  (Key-No.)  §  878;  Cent.  Dig.  §§  2098-2101. 

»  Friedenstein  v.  U.  S.,  125  U.  S.  224,  8  Sup.  Ct  838,  31  L.  Ed. 
736;  Dunbar  v.  U.  S.,  156  U.  S.  185,  15  Sup.  Ct  325,  39  L.  Ed.  390; 
Kaye  v.  U.  S.,  177  Fed.  147,  100  C.  C.  A.  567.  See  "Criminal  Law," 
Dec.  Dig.  (Key-No.)  §  878;  Cent.  Dig.  §§  2098-2101. 

10  U.  S.  Cornp.  St.  1901,  p.  723. 

11  SPARF  v.  U.  S.,  156  U.   S.  51,  15  Sup.  Ct  273,  39  L.  Ed.  343. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  795;   Cent.  Dig.  §§  1923- 
1927. 

12  Stevenson  v.  U.  S.,  162  U.  S.  313,  16  Sup.  Ct  839,  40  L.  Ed.  980. 
See  "Criminal  Law,"  Deo.  Dig.  (Key-No.)  §  7^8;   Cent.  Dig.  §§  1923- 
1927. 


§  25)  THE   TRIAL  AND  ITS   INCIDENTS  67 

consent  of  parties  and  in  the  presence  of  the  defendant, 
bring  in  a  sealed  verdict.13 

New  Trials 

A  motion  for  a  new  trial  is  addressed  to  the  discretion 
of  the  federal  court,  and  is  not  ordinarily  reviewable, 
though,  where  the  acts  to  which  exceptions  have  been 
taken  can  only  be  availed  of  by  granting  the  accused  a 
new  trial,  and  those  acts  are  properly  excepted  to,  the  fact 
that  the  question  comes  up  in  the  form  of  a  motion  for  a 
new  trial  will  not  prevent  the  appellate  court  from  re- 
lieving the  accused  against  the  errors  so  committed.1* 

Motions  in  Arrest  of  Judgment 

This  motion  only  lies  for  matter  apparent  on  the  record, 
or  for  the  lack  of  matter  that  ought  to  be  apparent  on  the 
record.  For  mere  matters  of  form,  the  court  will  not  sus- 
tain such  a  motion — even  for  points  which  in  some  cases 
might  have  been  good  on  demurrer.15 

Judgment  and  Sentence 

The  judgment  should  be  definite,  and  show  that  it  is 
based  upon  the  verdict  and  the  criminal  statute  under 
which  the  prosecution  is  instituted,  though  any  defect  in 
this  particular  may  be  supplied  by  the  full  record,  if  that 
itself  is  complete,  showing  an  indictment,  arraignment, 
plea,  trial,  and  conviction.16  It  must  conform  strictly  to 
the  statute,  and,  if  it  goes  on  and  adds  a  character  of  im- 

13  Pounds  v.  TJ.  S.,  171  U.  S.  35,  18  Sup.  Ct.  729,  43  L.  Ed.  62.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  873;  Cent.  Dig.  §  208%. 

i*  Mattox  v.  TJ.  S.,  146  U.  S.  140,  13  Sup.  Ct.  50,  36  L.  Ed.  917.  See 
"Criminal  Laic,"  Dec.  Dig.  (Keu-No.)  §  1156;  Cent.  Dig.  §§  3067-3071. 

i5U.  S.  v.  Barnhart  (U.  S.)  17  Fed.  579;  Durland  v.  U.  S.,  161 
U.  S.  306,  16  Sup.  Ct.  508,  40  L.  Ed.  709;  Connors  v.  U.  S.,  158  U. 
S.  408,  15  Sup.  Ct.  951,  39  L.  Ed.  1033 ;  Ledbetter  v.  U.  S.,  170  U. 
S.  606,  18  Sup.  Ct.  774,  42  L.  Ed.  1162 ;  Morris  v.  U.  S.,  168  Fed.  682, 
94  C.  C.  A.  168 ;  Floren  v.  U.  S.,  186  Fed.  961,  108  C.  C.  A.  159.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  974;  Cent.  Dig.  §§  2469-2478. 

ie  White  v.  U.  S.,  164  U.  S.  100,  17  Sup.  Ct.  38,  41  L.  Ed.  365; 
Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup  Ct.  410,  38  L.  Ed.  208.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  995;  Cent.  Dig.  §§  2518-2543. 


68  DISTEICT  COURT — CRIMINAL  JURISDICTION         (Ch.  3 

prisonment  not  authorized  by  law,  it  is  void — as,  for  ex- 
ample, where  a  judgment  sentenced  a  person  accused  of 
crime  to  imprisonment  for  one  year  and  the  payment  of  a 
fine,  and  then  illegally  added  that  the  imprisonment  should 
take  place  in  a  state  penitentiary,  the  judgment  was  void, 
and  the  prisoner  was  released  on  habeas  corpus.17  When 
a  writ  of  error  is  taken  to  a  judgment,  it  is  merely  stayed, 
not  vacated.18  Where  a  prisoner  is  convicted  on  several 
offenses,  the  court  can  impose  a  single  sentence,  making  it 
greater  than  it  would  have  been  on  any  one.19  Section 
330  of  the  Penal  Code  (Act  March  4,  1909,  c.  321,  35  Stat. 
1152  [U.  S.  Comp.  St.  Supp.  1911,  p.  1686])  permits  the 
jury  in  certain  capital  cases  to  qualify  their  verdict  by  add- 
ing thereto,  "Without  capital  punishment,"  and  in  such 
case  the  court  cannot  sentence  to  death.  This  statute  has 
been  construed  to  give  the  jury  power  to  add  this  qualify- 
ing clause  in  any  capital  case,  though  there  is  no  evidence 
whatever  of  palliating  circumstances,  and  the  court  must 
not  take  this  right  away  from  them  by  instructions.20 

IT  In  re  Bonner,  151  U.  S.  242,  14  Sup.  Ct.  323,  38  L.  Ed.  149.  See 
"Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  995;  Cent.  Dig.  §§  2518-25>,S. 

is  Schwab  v.  Berggren,  143  U.  S.  442,  12  Sup.  Ct  525,  36  L.  Ed. 
218.  See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  1084;  Cent.  Dig.  §§ 
2728-2785. 

i»  In  re  De  Bara,  179  U.  S.  316,  21  Sup.  Ct.  110,  45  L.  Ed.  207. 
See  "Criminal  Law,"  Dec.  Dig.  (Key-No.)  §  991;  Cent.  Dig.  §§  25/8, 
2525,  2528. 

20  Winston  v.  U.  S.,  172  U.  S.  303,  19  Sup.  Ct.  212,  43  L.  Ed.  456. 
See,  also,  on  this  same  statute,  MOTES  v.  U.  S.,  178  U.  S.  458,  20 
Sup.  Ct.  993,  44  L.  Ed.  1150.  See  "Criminal  Law,"  Dec.  Dig.  (Key- 
No.)  §  884;  Gent.  Dig.  §  2107. 


§  27)      DISTRICT  COURT — MISCELLANEOUS  JURISDICTION  69 


CHAPTER  IV 

THE  DISTRICT  COURT  (Continued)— MISCELLANEOUS  JURIS- 
DICTION 

26.  Penalties,  Forfeitures,  and  Seizures. 

27.  Same — Nature  and  Form. 

28.  Admiralty. 

29.  Same — Nature  and  Form. 

30.  Particular  Classes  of  Litigation,  Including  Questions  under  the 

Laws  Relating  to  the  Slave  Trade,  the  Revenue,  Domestic  and 
Foreign,  the  Postal  Laws,  the  Patent,  Copyright,  and  Trade- 
Mark  Laws,  the  Interstate  Commerce  Laws,  Questions  on  De- 
bentures, the  Civil  Rights  Laws,  the  National  Bank  Laws, 
Suits  by  Aliens  for  Torts  and  Suits  against  Consuls. 


PENALTIES,  FORFEITURES,  AND  SEIZURES 

26.  The  district  court  has  jurisdiction  of  all  suits  for  penal- 

ties and  forfeitures  incurred  under  any  law  of  the 
United  States,  and  of  all  seizures  on  land  and  on 
waters  not  within  the  admiralty  and  maritime  ju- 
risdiction. 

The  ninth  clause  of  section  24  of  the  Judicial  Code  gives 
the  district  court  jurisdiction  "of  all  suits  for  penalties  and 
forfeitures  incurred  under  any  law  of  the  United  States," 
and  the  third  clause  of  the  same  section  gives  it  jurisdic- 
tion of  all  seizures  on  land  and  on  waters  not  within  ad- 
miralty and  maritime  jurisdiction. 

SAME— NATURE  AND  FORM 

27.  These  proceedings  are  against  the  offender  or  against 

the  property  or  both.  Suits  for  penalties  are  in 
the  form  of  an  ordinary  common-law  action  on  a 
money  demand.  Suits  for  forfeitures  against  the 


70       DISTKICT  COUBT — MISCELLANEOUS  JURISDICTION      (Ch.  4 

property  are  in  the  form  of  an  information  in  rem. 
They  partake  both  of  a  civil  and  a  criminal  na- 
ture, possessing  certain  attributes  of  each. 

Penalties  and  forfeitures  are  common  all  through  the 
federal  statutes,  in  connection  with  the  navigation  laws, 
the  customs  laws,  the  internal  revenue  laws,  etc.  They 
usually  prescribe  a  penalty  against  the  offender,  and,  where 
the  offense  is  sufficiently  grave,  a  forfeiture  of  the  property 
engaged  in  the  violation  of  law.  In  some  of  the  statutes, 
the  property  itself  is  treated  as  the  offender,  independent 
of  the  question  of  ownership.  In  such  case  the  procedure 
against  the  property  as  an  offending  thing  is  independent 
of  the  procedure  against  the  owner.  In  fact,  it  is  possible 
for  the  owner  to  be  acquitted  and  the  property  condemned 
in  such  case.  Other  proceedings  make  the  act  of  the  owner 
and  the  forfeiture  of  the  property  so  interwoven  that  the 
one  is  an  incident  of  the  other.  The  special  statute  must 
be  referred  to  in  each  case,  to  ascertain  whether  the  case 
falls  under  one  or  the  other  of  these  classes.  Under  the 
first  of  these  two  clauses  "suits  for  penalties  and  for- 
feitures" mean  civil  actions.1  Under  section  42  of  the 
Judicial  Code  all  pecuniary  penalties  and  forfeitures  may 
be  sued  for  and  recovered,  either  in  the  district  where  they 
accrue,  or  in  the  district  where  the  offender  is  found ;  and, 
under  section  45,  proceedings  on  seizures,  for  forfeiture 
under  any  law  of  the  United  States,  made  on  the  high  seas, 
may  be  prosecuted  in  any  district  into  which  the  property 
so  seized  is  brought,  and  proceedings  instituted.  Proceed- 
ings on  such  seizures  made  within  any  district  shall  be 
prosecuted  in  the  district  where  the  seizure  is  made,  except 
in  cases  where  it  is  otherwise  provided. 

i  The  Little  Ann,  Fed.  Gas.  No.  8,397 ;  U.  S.  v.  Mann,  Fed.  Cas. 
No.  15,718.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  284;  Cent.  Dig.  §§ 
820-831;  "War,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §  7. 


§  27)  PENALTIES,  FORFEITURES,  AND   SEIZURES  71 

Suits  for  penalties  are  in  the  form  of  an  ordinary  com- 
mon-law action  on  a  money  demand.  Suits  for  forfeitures 
against  the  property  are  in  the  form  of  an  information  in 
rem.  These  procedures  partake  both  of  a  civil  and  a  crim- 
inal nature.  Where  no  fine  or  imprisonment  is  imposed,2 
they  are  civil  in  their  form — so  much  so,  indeed,  that  the 
government  has  an  appeal.  But  they  are  so  far  criminal 
in  their  nature  that  a  defendant  cannot  be  required  to  give 
evidence  against  himself.3  On  the  other  hand,  in  a  civil 
action  sounding  in  dollars  and  cents,  the  evidence  can  be 
taken  by  deposition,  and  the  constitutional  provision  in 
reference  to  confronting  the  accused  with  witnesses  does 
not  prevent  its  being  so  taken.4  Where  the  act  of  the 
owner  is  so  connected  with  the  illegal  use  of  the  property 
as  to  make  it  an  essential  element  of  the  offense,  his  ac- 
quittal would  bar  a  procedure  in  rem  against  the  prop- 
erty.5 These  cases  are  triable  by  a  jury,  but  the  parties 
may  waive  a  jury.6  Where  the  violation  of  law  by  the 
thing  itself  is  independent  of  the  act  of  the  owner,  the  pro- 
cedure against  the  thing  and  the  prosecution  of  the  owner 
are  distinct,  and  a  forfeiture  of  the  thing  may  be  decreed 


2  Hepner  v.  U.  S.,  213  TJ.  S.  103,  29  Sup.  Ct.  475,  53  L.  Ed.  720,  27 
L.  R.  A.  (N.  S.)  739,  16  Ann.  Gas.  960 ;  Chicago,  B.  &  Q.  R.  Co.  v.  U. 
S.,  220  U.  S.  559,  31  Sup.  Ct.  612,  55  L.  Ed.  582.  They  are  so  far  civil 
that  a  recovery  may  be  had  on  a  preponderance  of  evidence.  New 
York  C.  &  H.  R.  R.  Co.  v.  U.  S.,  165  Fed.  833,  91  C.  C.  A.  519.  See 
"Aliens,"  Dec.  Dig.  (Key-No.)  §  58;  "Penalties,"  Dec.  Dig.  (Key-No.) 
§  16;  Cent.  Dig.  §§  13-16. 

a  LEES  v.  U.  S.,  150  U.  S.  476,  14  Sup.  Ct.  163,  37  L.  Ed.  1150. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  414;  Cent.  Dig.  §  1109;  "Wit- 
nesses," Dec.  Dig.  (Key-No.)  §  800;  Cent.  Dig.  §§  1242,  1242^. 

*U.  S.  v.  Zucker,  161  U.  S.  475,  16  Sup.  Ct.  641,  40  L.  Ed.  777. 
See  "Criminal  Laic,"  Dec.  Dig.  (Key-No.)  §  662;  Cent.  Dig.  §§  3, 
1538-1548. 

6  Chantangco  v.  Abaroa,  218  U.  S.  476,  31  Sup.  Ct.  34,  54  L.  Ed. 
1116.  See  "Judgment,"  Dec.  Dig.  (Key-No.)  §  559;  Cent.  Dig.  §§  1077, 
1078. 

e  Henderson's  Distilled  Spirits,  14  Wall.  44,  20  L.  Ed.  815.  See 
"Jury,"  Dec.  Dig.  (Key-No.)  §§  28,  29;  Cent.  Dig.  §§  176-203. 


72        DISTRICT   COURT — MISCELLANEOUS   JURISDICTION      (Ch.  4 

without  a  conviction  of  the  owner.1  The  procedure,  on 
a  libel  of  information,  which  is  by  nature  largely  an  ad- 
miralty proceeding,  or  at  least  based  on  the  practice  of  the 
admiralty  court,  is  required  by  admiralty  rule  22  of  the 
Supreme  Court  to  state  the  place  of  seizure,  whether  on 
land  or  on  the  high  seas,  or  on  navigable  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  the  district  within  which  the  property  is 
brought,  and  where  it  then  is.  The  information  or  libel  of 
information  shall  also  propound  in  distinct  articles  the 
matters  relied  on  as  grounds  or  causes  of  forfeiture,  and 
aver  the  same  to  be  contrary  to  the  form  of  the  statute  or 
statutes  of  the  United  States  in  such  case  provided,  as  the 
case  may  require,  and  shall  conclude  with  a  prayer  of  due 
process  to  enforce  the  forfeiture,  and  give  notice  to  all  per- 
sons concerned  in  interest  to  appear  and  show  cause  at  the 
return  day  of  the  process  why  the  forfeiture  should  not  be 
decreed.  By  section  923  of  the  Revised  Statutes,8  in  such 
cases  fourteen  days'  notice  of  the  seizure  and  libel  shall  be 
given  by  causing  the  substance  of  the  libel,  with  the  order 
of  the  court  thereon,  setting  forth  the  time  and  place  ap- 
pointed for  trial,  to  be  inserted  in  some  newspaper  pub- 
lished near  the  place  of  seizure,  and  by  posting  up  the  same 
in  the  most  public  manner,  for  the  space  of  fourteen  days, 
at  or  near  the  place  of  trial,  and  proclamation  shall  be  made 
in  such  manner  as  the  court  shall  direct ;  and,  if  no  person 
appears  and  claims  the  property  or  bonds  it,  the  court  can 
proceed  to  hear  and  determine  the  cause  according  to  law. 

By  section  1047  of  the  United  States  Revised  Statutes,9 
suits  for  penalties  or  forfeitures  are  limited  to  five  years, 
except  where  there  are  special  provisions  in  special  cases. 

Statutory    forfeitures,    unlike    common-law    forfeitures, 

i  U.  S.  v.  The  Three  Friends,  166  U.  S.  1,  17  Sup.  Ct.  495,  41.  L. 
Ed.  897.    See  "Neutrality  Laics,"  Dec.  Dig.  (Key-No.)  §  4. 
«  U.  S.  Comp.  St.  1901,  p.  686. 
»  U.  S.  Comp.  St.  1901,  p.  727. 


§  27)  PENALTIES,  FORFEITURES,  AND  SEIZURES  73 

take  effect,  not  from  the  date  of  sentence,  but  from  the 
commission  of  the  offense,  even  as  against  an  innocent  pur- 
chaser.10 

The  draft  of  the  Judicial  Code  submitted  by  the  Revi- 
sion Committee  shows  that  this  ninth  clause  of  section  24 
of  the  Code  (U.  S.  Comp.  St.  Supp.  1911,  p.  135)  was  in- 
tended to  include  the  special  provision  embodied  in  para- 
graph 6  of  section  563  of  the  Revised  Statutes  (U.  S.  Comp. 
St.  Supp.  1911,  p.  455),  conferring  jurisdiction  on  the  dis- 
trict court  of  suits  under  section  3490  of  the  Revised  Stat- 
utes 1X  against  persons  making  false  claims  against  the 
United  States.12 

Powers  of  Secretary  of  Treasury 

Under  sections  5293  and  5294  of  the  Revised  Statutes,18 
the  Secretary  of  the  Treasury  is  given  a  large  discretion 
in  remitting  penalties  incurred  where  no  intent  to  violate 
the  law  seems  to  exist;  and  it  is  but  just  to  the  department 
of  the  treasury  to  say  that,  in  the  exercise  of  this  discretion, 
great  generosity  and  mercy  have  been  shown,  as  against 
parties  innocent  of  any  intent  to  violate  the  law.  This 
power  may  be  exercised  by  the  Secretary  of  the  Treasury 
even  in  suits  brought  by  informers  before  actual  trial  and 
judgment,  and  these  sections  giving  him  this  power  are  not 
unconstitutional,  as  violating  the  pardoning  power  of  the 
President.1* 


10  U.  S.  v.  Stowell,  133  U.  S.  17,  10  Sup.  Ct.  244,  33  L.  Ed.  555; 
581  Diamonds  v.  U.  S.,  119  Fed.  556,  56  C.  C.  A.  122,  60  L.  R.  A. 
595.    See  "Customs  Duties,"  Dec.  Dig.  (Key-No.)  §  ISO;   Cent.  Dig.  §§ 
296-315. 

11  U.  S.  Comp.  St  1901,  p.  2328. 

12  U.  S.  v.  Shapleigh,  54  Fed.  126,  4  C.  C.  A.  237.     See  "United 
States,"  Dec.  Dig.  (Key-No.)  §  122;   Cent.  Dig.  §  110. 

is  U.  S.  Comp.  St.  1901,  pp.  3605-3607.  Some  of  these  powers  are 
now  vested  in  the  Department  of  Commerce  and  Labor.  32  Stat.  825, 
829  (II.  S.  Comp.  St  Supp.  1911,  p.  122,  §  10). 

14  The  Laura,  114  U.  S.  411,  5  Sup.  Ct.  881,  29  L.  Ed.  147.  See 
"Pardon,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §  5. 


74       DISTRICT   COURT — MISCELLANEOUS  JURISDICTION      (Ch.  4 

ADMIRALTY 

28.  Jurisdiction  in  matters  of  admiralty  and  maritime  law 
is  vested  in  the  district  court,  and  this  jurisdiction 
is  made  exclusive,  except  where  expressly  speci- 
fied to  the  contrary.  This  is  an  important  class 
of  jurisdiction  of  the  district  courts. 


SAME— NATURE  AND  FORM 

29.  The  admiralty  procedure  is  in  rem  or  in  personam,  and 
extends  to  matters  in  contract  and  in  tort  coming 
under  the  admiralty  and  maritime  law.  The  prac- 
tice is  largely  governed  by  a  set  of  rules  pre- 
scribed by  the  Supreme  Court  for  the  purpose. 

The  third  clause  of  section  24  of  the  Judicial  Code  gives 
the  court  jurisdiction  of  all  civil  causes  of  admiralty  and 
maritime  jurisdiction,  saving  to  suitors  in  all  cases  the 
right  of  a  common-law  remedy  where  the  common  law  is 
competent  to  give  it,  of  all  seizures  on  land  and  on  waters 
not  within  admiralty  and  maritime  jurisdiction  and  of  all 
prizes  brought  into  the  United  States ;  and  the  jurisdiction 
of  the  district  court  over  admiralty  causes  is  made  exclu- 
sive except  where  expressly  specified  to  the  contrary. 

The  admiralty  and  maritime  jurisdiction  of  the  district 
courts — at  least  of  those  district  courts  on  the  seacoast  or 
important  navigable  waters — is  probably  its  most  impor- 
tant class  of  jurisdiction.  The  procedure  in  admiralty  is 
sui  generis,  consisting  of  actions  in  rem  and  actions  in 
personam.  Those  in  rem  are  against  the  vessel  or  thing 
itself.  Those  in  personam  are  ordinary  civil  suits  on  the 
admiralty  side  of  the  court  against  individuals  for  ad- 
miralty causes  of  action. 


:§§  28-29)  ADMIBALTY  75 

Cases  of  admiralty  cognizance  are  either  in  contract  or 
in  tort.  Those  in  contract  depend  upon  the  character  of 
the  cause  of  action,  those  being  of  admiralty  cognizance 
which  are  marine  in  their  nature.  Those  in  tort  depend 
upon  the  locality,  admiralty  having  jurisdiction  of  such 
actions  where  they  arise  and  become  consummate  on  nav- 
igable waters  within  the  jurisdiction  of.  the  admiralty 
•courts.  Illustrations  of  admiralty  causes  of  action  in  con- 
tract are  suits  against  vessels  for  supplies  and  repairs,  suits 
under  charter  parties,  and  suits  on  bills  of  lading;  and 
illustrations  of  actions  of  tort  in  the  admiralty  are  colli- 
sions between  vessels,  and  personal  injuries  inflicted  by 
negligence  on  navigable  waters.  The  pleading  which  sets 
-out  the  cause  of  action  is  called  a  libel,  and  the  defense 
is  made  by  answer  or  exception.  In  an  action  in  rem,  the 
property  itself  is  seized,  and,  if  not  bonded,  the  libelant 
has  a  decree  of  sale  of  the  property  entered  by  the  court, 
and  it  is  sold  by  the  marshal,  and  the  proceeds  applied  to 
pay  the  claims  asserted  against  it.  The  procedure  and 
practice  in  the  admiralty  courts  are  regulated  by  the  rules 
in  admiralty  prescribed  by  the  Supreme  Court  for  the 
government  of  admiralty  causes.  They  provide  a  simple 
and  excellent  .system  of  pleading,  by  which  causes  are 
quickly  matured,  and  substantial  justice  administered. 

Most  of  these  admiralty  causes  of  action  are  of  a  nature 
that  gives  the  common-law  courts  also  jurisdiction ;  that  is, 
jurisdiction  over  the  cause  of  action,  but  not  jurisdiction 
over  the  procedure.  For  instance,  in  a  case  of  collision  be- 
tween two  vessels,  the  injured  party  can  proceed  by  a  libel 
in  rem  against  the  other  vessel,  and  the  district  court  alone 
has  jurisdiction  of  such  a  pleading.15  But  on  the  other 
hand,  as  a  collision  is  a  tort  at  common  law,  if  due  to  neg- 

15  The  Glide,  167  U.  S.  606,  17  Sup.  Ct  930,  42  L.  Ed.  296.  See 
"Admiralty,"  Dec.  Dig.  (Key-No.)  §§  1-25;  Cent.  Dig.  §§  1-264;  "Col- 
lision," Dec.  Dig.  (Key-No.)  §  111;  Cent.  Dig.  §  234;  "Maritime 
Liens,"  Dec.  Dig.  (Key-No.)  §  60;  Cent.  Dig.  §  98. 


76        DISTRICT  COURT — MISCELLANEOUS  JURISDICTION      (Ch.  4: 

ligence,  the  injured  party  can  bring  an  ordinary  action  of 
tort  in  a  common-law  court,  or,  if  the  citizenship  and 
amount  are  requisite,  he  can  bring  an  ordinary  action  of 
tort  in  the  district  court  of  the  United  States  on  its  com- 
mon-law side.18 


PARTICULAR  CLASSES  OF  CONTROVERSIES 

30.  The  district  court  has  jurisdiction,  under  section  24, 
paragraphs  4-18,  inclusive,  of  the  following  par- 
ticular classes  of  controversies,  of  greater  or  less 
importance : 

(a)  Under  laws  relating  to  slave  trade; 

(b)  Under  internal  revenue,  customs  and  tonnage  laws; 

(c)  Under  postal  laws ; 

(d)  Under  patent,  copyright  and  trade-mark  laws; 

(e)  Violation  of  interstate  commerce  laws; 

(f)  On  debentures; 

(g)  On   account   of   acts   done   under  laws   of    United 

States ; 
(h)  Against   persons   having   knowledge   of   conspiracy 

against  civil  rights; 
(i)  To  redress  deprivation  under  color  of  law  of  civil 

rights ; 

(j)  To  recover  certain  offices;     v 
(k)  Against  national  banking  associations; 
(1)  By  aliens  for  torts ; 
(m)  Against  consuls  and  vice  consuls. 

Suits  under  Laws  Relating  to  Slave  Trade 

This  constitutes  paragraph  4  of  section  24  (U.  S.  Comp. 
St.  Supp.  1911,  p.  136).  It  was  a  jurisdiction  formerly  ex- 
ercised by  the  circuit  court,  but  is  now  of  no  practical  im- 
portance. 

is  The  jurisdiction  of  the  admiralty  courts  is  so  extensive  that  it 
is  impossible  in  this  treatise  to  discuss  it.  Reference  is  made  to  the 
author's  treatise  on  Admiralty,  published  in  the  year  1901. 


§  30)  PABTICULAE   CLASSES   OF  CONTROVERSIES  77 

Cases  Arising  under  Any  Law  Providing  for  Internal  Rev- 
enue, or  for  Revenue  from  Imports  or  Tonnage,  except 
That  Conferred  on  the  Court  of  Customs  Appeals 

This  is  paragraph  5  of  section  24,  and  is  intended  as  a 
combination  of  paragraph  5,  §  563,  of  the  Revised  Statutes 
(U.  S.  Comp.  St.  1901,  p.  456),  conferring  on  the  dis- 
trict court  jurisdiction  of  suits  in  equity  to  enforce  liens 
for  federal  taxes  on  real  estate,  and  paragraph  4,  §  629, 
of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  503), 
which  conferred  jurisdiction  of  various  questions  of  reve- 
nue on  the  circuit  court. 

Section  3207  of  the  Revised  Statutes  1T  gives  the  right 
to  file  a  bill  in  chancery  to  enforce  tax  liens  on  real  estate ; 
and  section  3213  18  gives  a  right  of  action  to  the  United 
States  in  any  proper  form  of  action  or  by  any  appropriate 
form  of  proceeding,  qui  tam  or  otherwise,  before  any  cir- 
cuit or  district  court  of  the  United  States  for  the  district 
within  which  a  fine  or  forfeiture  may  have  been  incurred, 
for  the  recovery  of  forfeitures  under  the  tax  laws  con- 
nected with  the  internal  revenue ;  and  the  same  section 
gives  a  right  of  action  for  taxes  in  the  district  where  the 
liability  to  the  tax  is  incurred,  or  where  the  party  who 
owes  the  tax  resides  at  the  commencement  of  the  action.19 

Suits  under  Postal  Laws 

This  is  paragraph  6,  §  24,  and  was  taken  from  paragraph 
7,  §  563,  of  the  Revised  Statutes. 

Suits  under  Patent,  Copyright  and  Trade-Mark  Laws 

This  constitutes  paragraph  7  of  section  24,  and  is  one 
of  the  classes  of  jurisdiction  formerly  exercised  by  the 
circuit  court. 


IT  U.  S.  Comp.  St.  1901,  p.  2081. 

«U.  S.  v.  Mackoy,  2  Dill.  299,  Fed.  Cas.  No.  15,696;  U.  S.  v. 
Rindskopf,  8  Biss.  507,  Fed.  Cas.  No.  16,166.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  297. 

i»  U.  S.  Comp.  St  1901,  p.  2083. 


78        DISTRICT   COURT — MISCELLANEOUS  JURISDICTION      (Ch.  4- 

This  very  extensive  ground  of  federal  jurisprudence  can- 
not be  discussed  in  the  limits  prescribed  by  this  treatise, 
and  must  be  left  to  books  dealing  specially  with  that  sub- 
ject. 

The  mere  fact  that  a  patent  may  be  incidentally  con- 
nected with  the  litigation  is  not  sufficient  to  confer  juris- 
diction under  this  clause.  The  right  of  the  party  must  de- 
pend directly  upon  the  patent  or  copyright  law  itself,  and 
must  not  be  merely  incidentally  involved.  It  does  not 
cover  mere  suits  on  contracts  connected  with  a  patent,  like 
questions  of  construction,  or  questions  involving  the  va- 
lidity of  a  license  to  use  a  patent.20 

A  suit  to  enjoin  the  assessment  of  taxes  on  the  ground 
that  they  are  levied  on  patent  rights  is  not  a  suit  arising 
under  the  patent  or  copyright  laws  of  the  United  States,  in. 
the  sense  of  this  statute.21  On  the  other  hand,  an  action 
for  damages  for  the  infringement  of  a  copyright,  under  the- 
provisions  of  section  4966  of  the  Revised  Statutes,22  does 
arise  under  the  patent  or  copyright  laws  of  the  United 
States,23  as  also  a  suit  to  recover  the  penalty  of  one  dollar 
for  each  copy  of  the  copyrighted  article  circulated  contrary, 
to  the  provisions  of  section  4965  of  the  Revised  Statutes.24 


20  Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  U.  S.  282,  22  Sup. 
Ct.  681,  46  L.  Ed.  910 ;   H.  C.  Cook  Co.  v.  Beecher,  217  TJ.  S.  497,  3O 
Sup.  Ct.  601,  54  L.  Ed.  855;    Henry  v.  A.  B.  Dick  Co.,  224  U.  S.  1,. 
32  Sup  Ct.  364,  56  L.  Ed.  645 ;    The  Fair  v.  Kohler  D.  &  S.  Co.,  228 

U.  S.  22,  33  Sup.  Ct  410,  57  L.  Ed.  ;    post,  pp.  242,  490.    See 

"Courts,"  Dec.  Dig.  (Key-No.)  §  290;   Cent.  Dig.  §  832. 

21  Holt  v.  Manufacturing  Co.,  176  TJ.  S.  68,  20  Sup.  Ct  272,  44  L. 
Ed.  374.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  290;   Cent.  Dig.  §  832. 

22  U.  S.  Comp.  St.  1901,  p.  3415. 

23  Brady  v.  Daly,  175  U.  S.  148,  20  Sup.  Ct  62,  44  L.  Ed.  109.    See 
"Courts,"   Dec.   Dig.   (Key-No.)   §   291;    Cent.   Dig.   §§  833;    "Copy- 
rights," Cent.  Dig.  §§  49,  67. 

2*  Falk  v.  Publishing  Co.  (C.  C.)  100  Fed.  77;  Id.,  107  Fed.  126,  46 
C.  C.  A.  201 ;  Werckmeister  v.  American  Tobacco  Co.,  207  U.  S.  375, 
28  Sup.  Ct  125,  52  L.  Ed.  254.  See  "Courts,"  Dec.  Dig.  (Key-No.)  g 
291;  Cent.  Dig.  §§  833;  "Copyrights,"  Cent.  Dig.  §§  49,  67. 


§  30)  PARTICULAR   CLASSES   OF   CONTROVERSIES  79 

Suits  for  Violation  of  Interstate  Commerce  Laws 

This  is  paragraph  8  of  section  24.  The  proceedings 
which  are  exclusively  to  be  taken  in  the  commerce  court 
are  excepted  from  the  operation  of  this  paragraph.  This 
exception  is  set  out  in  section  207  of  the  Judicial  Code 
(U.  S.  Comp.  St.  Supp.  1911,  p.216)  * 

No  clause  of  the  Constitution  has  been  responsible  for 
as  much  legislation  in  recent  years  as  the  commerce  clause. 
It  has  been  used  as  a  clothesline  on  which  to  hang  every- 
thing; and  a  discussion  of  the  legislation  under  it  is  far 
beyond  the  purview  of  this  treatise.  The  best  known  ex- 
amples are  the  statutes  regulating  carriers  in  their  relation 
to  the  public  and  their  employees,  anti-trust  laws,  pure 
food  laws  and  laws  against  the  "white  slave"  traffic.  The 
decisions  on  these  various  laws  are  increasingly  numerous. 
A  few  of  the  later  ones  are  added  in  a  footnote.26 

*  The  Commerce  Court  is  now  abolished.    See  post,  p.  701. 

25  (i)  Under  the  interstate  commerce  act  (Act  Feb.  4,  1887,  c.  104, 
24  Stat.  379  [U.  S.  Comp.  St.  1901,  p.  3154]) :  Atlantic  Coast  Line 
R.  Co.  y.  Riverside  Mills,  219  U.  S.  106,  31  Sup.  Ct.  164,  55  L.  Ed. 
167,  31  L.  R.  A.  (N.  S.)  7;  Int.  Comm.  Commission  v.  Union  Pacific 
R.  Co.,  222  U.  S.  541,  32  Sup.  Ct.  108,  56  L.  Ed.  308;  Railroad  Com- 
mission of  Ohio  v.  Worthington,  225  U.  S.  101,  32  Sup.  Ct.  653,  56 
L.  Ed.  1004.  (2)  Under  the  safety  appliance  act  (Act  March  2,  1893, 
c.  196,  27  Stat.  531  fU.  S.  Comp.  St.  1901,  p.  3174]) :  Southern  Rail- 
way Co.  v.  U.  S.,  222  U.  S.  20,  32  Sup.  Ct.  2,  56  L.  Ed.  72;  Pacific 
Coast  Railway  Co.  v.  U.  S.,  173  Fed.  448,  98  C.  C.  A.  31.  (3)  Under 
the  employer's  liability  act  (Act  April  22,  1908,  c.  149,  35  Stat.  65 
[U.  S.  Comp.  St  Supp.  1911,  p.  1322]) :  Mondou  v.  New  York,  N.  H. 
&  H.  R.  Co.,  223  U.  S.  1,  32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A. 
(N.  S.)  44;  Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603, 
32  Sup.  Ct.  589,  56  L.  Ed.  911;  Missouri  Pac.  R.  Co.  v.  Castle,  224 
U.  S.  541,  32  Supp.  Ct  606,  56  L.  Ed.  875.  (4)  Under  the  pure  food 
laws :  Hipolite  Egg  Co.  v.  U.  S.,  220  U.  S.  45,  31  Sup.  Ct.  364,  55  L. 
Ed.  364;  Savage  v.  Jones,  225  U.  S.  501,  32  Sup.  Ct.  715,  56  L.  Ed. 
1182 ;  Standard  Stock  Food  Co.  v.  Wright,  225  U.  S.  540,  32  Sup.  Ct. 
784,  56  L.  Ed.  1197.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  289;  Cent. 
Dig.  §  830. 


80        DISTRICT   COURT — MISCELLANEOUS   JURISDICTION      (Ch.  4 

Suits  on  Debentures 

This  is  the  tenth  paragraph  of  section  24,  and  is  a  com- 
bination of  the  jurisdiction  heretofore  exercised  by  both 
the  district  and  circuit  courts. 

These  debentures  are  issued  in  connection  with  the  col- 
lection of  duties,  under  the  circumstances  set  out  in  sec- 
tions 3038-3042  of  the  Revised  Statutes.26 

Suits  for  Injuries  on  Account  of  Acts  Done  under  Laws  of 

the  United  States 

This  is  paragraph  11  of  section  24,  and  is  a  jurisdiction 
heretofore  conferred  on  the  circuit  court.27 

Suits  under  the  Civil  Rights  Amendments  and  Statutes 

These  constitute  paragraphs  12,  13,  14,  and  15  of  sec- 
tion 24. 

These  acts  have  been  the  subject  of  some  interesting 
decisions  by  the  Supreme  Court.  It  has  been  held  that 
the  exclusion  of  colored  men  from  juries  is  a  violation  of 
these  acts,  and  gives  a  colored  man  who  is  being  proceeded 
against  a  good  ground  of  exception.28  The  mere  fact, 
however,  of  separating  the  races,  is  not  a  violation  of  this 
act,  provided  equal  accommodations  are  furnished  to  both. 
This  applies  to  their  separation  in  public  schools  or  on 
public  conveyances.29  And  it  has  also  been  held  that  a 
statute  which  does  not  in  terms  discriminate  against  the 

26  TJ.  S.  Comp.  St.  1901,  p.  1997-1909. 

27  See  Crawford  v.  Johnson,  6  Fed.  Gas.  777;    Knight  v.  Shelton 
(C.  C.)  134  Fed.  423.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  282,  284; 
Cent.  Dig.  §§  820-838. 

28  In  re  Virginia,  100  U.  S.  339,  25  L.  Ed.  676;   Neal  v.  Delaware, 
103  U.  S.  370,  26  L.  Ed.  567;    Carter  v.  Texas,  177  U.  S.  442,  20 
Sup.  Ct.  687,  44  L.  Ed.  839.    See  "Civil  Rights,"  Dec.  Dig.  (Key-No.) 
§  10;    Cent.  Dig.  §  5;    "Constitutional  Law"  Dec.  Dig.  (Key-No.)  § 
221;   Cent.  Dig.  §  724. 

29  Davenport  v.  Cloverport  (D.  C.)  72  Fed.  6S9;   Gumming  v.  Board, 
175  U.  S.  528,  20  Sup.  Ct.  197,  44  L.  Ed.  262 ;    Plessy  v.  Ferguson, 
163  U.  S.  537,  16  Sup.  Ct.  1138,  41  L.  Ed.  256.    See  "Civil  Rights," 
Dec.  Dig.  (Key-No.)  §§  5-9;  Cent.  Dig.  §§  6-10;  "Constitutional  Law," 
Dec.  Dig.  (Key-No.)  §§  215-220;  Cent.  Dig.  §§  714-720. 


§  30)  PARTICULAR   CLASSES   OF  CONTROVERSIES  81 

colored  race  or  deprive  them  of  the  right  to  vote  is  not 
void  on  that  account  where  that  result  is  merely  incidental, 
and  where  it  does  not  appear  that  there  is  any  purpose  in 
the  administration  of  the  law  to  discriminate  against 
them.30 

Some  of  the  provisions  of  the  civil  rights  act  of  March 
1,  1875,31  have  been  held  unconstitutional.32 

An  interesting  discussion  of  the  subject  will  be  found  in 
Brawner  v.  Irwin  33  and  Bailey  v.  Alabama  (a  peonage 
case).34 

Suits  against  National  Banking  Associations 

This  is  paragraph  16  of  section  24.  In  substance  it  ap- 
plies to  suits  by  the  United  States  or  its  officers,  and  suits 
for  winding  up  the  affairs  of  such  banks,  and  suits  by  such 
banks  against  the  comptroller  of  the  currency  or  any  re- 
ceiver appointed  by  him  under  the  provisions  of  the  na- 
tional banking  act.  As  to  all  other  suits  by  or  against 
national  banks,  the  paragraph  provides  that  such  a  bank 
shall  be  deemed  a  citizen  of  the  state  in  which  it  is  located. 

This  paragraph  combines  the  former  district  and  circuit 
court  jurisdiction  given  by  the  Revised  Statutes  with  the 
qualifying  clause  as  to  citizenship  taken  from  the  acts  of 
July  12,  1882,35  and  August  13,  1888.38 


so  Williams  v.  Mississippi,  170  U.  S.  213,  18  Sup.  Ct  583,  42  L.  Ed. 
1012.  See,  in  general,  Civil  Rights  Cases,  109  U.  S.  3,  3  Sup.  Ct.  18, 
27  L.  Ed.  835.  See  "Elections,"  Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig. 
§  8. 

si  U.  S.  Rev.  St.  §  1977  et  seq.  (U.  S.  Comp.  St.  1901,  p.  1259  et 
seq.) 

32  Civil  Rights  Cases,  109  U.  S.  3,  3  Sup.  Ct.  18,  27  L.  Ed.  835. 
Sec  "Civil  Rights,"  Dec.  Dig.  (Key-No.)  §  1;  Cent.  Dig.  §§  1,  2; 
"Constitutional  Law,"  Dec:  Dig.  (Key-No.)  §  209;  Cent.  Dig.  §  678. 

ss  (C.  C.)  169  Fed.  964.  See  "Civil  Rights."  Dec.  Dig.  (Key-No.)  §§ 
1,  13;  Cent.  Dig.  §§  1,  2,  11,  12;  "Courts,"  Dec.  Dig.  (Key-No.)  §  282. 

34  219  U.  S.  219,  31  Sup.  Ct.  145,  55  L.   Ed.  191.     See  "Constitu- 
tional Law,"  Dec.  Dig.  (Key-No.)  §  83;   Cent.  Dig.  §§  150-151%. 

35  U.  S.  Comp.  St.  1901,  p.  3457. 
se  U.  S.  Comp.  St.  1901,  p.  514. 

"'HUGHES  FED.PB.(2D  ED.) 6 


82        DISTRICT   COURT — MISCELLANEOUS  JURISDICTION      (Ch.  4 

Until  these  acts,  the  district  court  had  jurisdiction  of 
suits  by  or  against  national  banks,  regardless  of  either  the 
question  of  citizenship  or  of  the  amount  involved.37  Suits 
between  a  national  bank  and  a  citizen  of  its  own  state  can 
no  longer  be  brought  in  the  federal  courts,  unless  there  iS 
some  other  ground  of  jurisdiction  involved  in  the  suit,  such 
as  the  existence  of  a  federal  question.38  If  the  court  would 
have  jurisdiction  of  the  cause  pf  action  provided  the  na- 
tional bank  was  a  state  bank,  it  would  still  have  jurisdic- 
tion, but  these  cases  would  go  into  the  district  court  on  the 
ground  of  diversity  of  citizenship  or  the  existence  of  a 
federal  question ;  these  grounds  being  discussed  in  another 
connection.39 

Suits  by  Aliens  for  Tort,  and  Suits  against  Consuls  or  Vice 

Consuls 

Jurisdiction  of  these  cases  is  conferred  on  the  district 
court  by  the  seventeenth  and  eighteenth  paragraphs  of 
section  24.  They  are  maintainable  against  a  consul  under 
these  provisions,  though  the  consul  may  be  a  citizen  of 
the  United  States  appointed  as  consul  by  some  foreign 
power.40 

37  Kennedy  v.  Gibson,  8  Wall.  498,  19  L.  Ed.  476.  See  "Banks  and 
Banking,"  Dec.  Dig.  (Key-No.)  §  275;  Cent.  Dig.  §§  1056-1066; 
"Courts,"  Dec.  Dig.  (Key-No.)  §  282. 

33  National  Bank  of  Jefferson  v.  Fore  (C.  C.)  25  Fed.  209;  Union 
Nat.  Bank  v.  Miller  (C.  C.)  15  Fed.  703.  See  "Banks  and  Banking," 
Dec.  Dig.  (Key-No.)  §  275;  Cent.  Dig.  §§  1056-1066. 

3?  Leather  Manufacturers'  Nat.  Bank  v.  Cooper,  120  U.  S.  778,  7 
Sup.  Ct  777,  30  L.  Ed.  816;  Huff  v.  Union  National  Bank  (C.  C.) 
173  Fed.  333;  International  Trust  Co.  v.  Weeks,  203  U.  S.  364,  27 
Sup.  Ct  69,  51  L.  Ed.  224 ;  post,  p.  240.  See  "Banks  and  Banking," 
Dec.  Dig.  (Key-No.)  §  275;  Cent.  Dig.  §§  1056-1066. 

40  Baiz,  In  re,  135  U.  S.  403,  10  Sup.  Ct.  854,  34  L.  Ed.  222.  See, 
in  general,  lasigi  v.  Van  De  Carr,  166  U.  S.  391,  17  Sup.  Ct.  595,  41 
L.  Ed.  1045;  Bors  v.  Preston,  111  U.  S.  261,  4  Sup.  Ct.  407,  28  L. 
Ed.  419.  See  "Ambassadors  and  Consuls,"  Dec.  Dig.  (Key-No.)  §  8; 
Cent.  Dig.  §§  23-25;  "Courts,"  Dec.  Dig.  (Key-No.)  §§  301,  518;  Cent. 
Dig.  §  842. 


§§  31-32)  DISTBICT   COUET — BANKRUPTCY  83 


CHAPTER  V 
THE  DISTRICT  COURT  (Continued)— BANKRUPTCY 

31.  Bankruptcy — Jurisdiction  Over. 

32.  Same — History  of  the  Legislation. 

33.  Same — Policy  of  the  Legislation. 

34.  Constitutionality  of  Bankrupt  Legislation. 

35.  Same — Effect  of  Federal  on  State  Legislation. 

36.  The  Bankruptcy  Courts. 

37.  Parties — Voluntary  Proceedings. 

38.  Same — Involuntary  Proceedings. 

39.  Pleadings. 

40.  Acts  of  Bankruptcy — Definition  and  Enumeration. 

41.  Same — Transfers  to  Hinder,  Delay,  and  Defraud  Creditors. 

42.  Same — Illegal  Preferences. 

43.  Same — Suffering  Preferences  by  Legal  Process. 

44.  Same — Assignment  as  an  Act  of  Bankruptcy. 

45.  Same — Admission  of  Insolvency  in  Writing. 

46.  Time  of  Filing  Petition. 


BANKRUPTCY— JURISDICTION   OVER 

31.  The  district  court  is  the  principal  tribunal  exercising 
supervision  over  matters  of  bankruptcy. 


SAME— HISTORY    OF   THE   LEGISLATION 

32.  Several  United  States  bankruptcy  statutes  have  been 
in  force  at  different  intervals,  varying  somewhat 
in  their  nature  according  to  the  exigencies  of  the 
period.  The  present  statute  on  the  subject  was 
put  into  force  by  the  act  of  July  1,  1898.1 

»  U.  S.  Comp.  St.  1901,  p.  34ia 


84  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

SAME— POLICY   OF   THE   LEGISLATION 

33.  The  general  policy  of  bankrupt  laws  is  at  once  the  re- 
lief of  honest  but  unfortunate  debtors,  by  enabling 
them  to  start  life  anew,  relieved  of  a  load  of  in- 
debtedness which  would  otherwise  crush  their  fu- 
ture, and  again  the  protection  of  the  bankrupt's 
creditors,  who  find  a  remedy  in  its  provisions  for 
the  better  enforcement  of  their  claims.  The  poli- 
cy of  these  laws  has  varied  according  as  they 
have  had  most  in  view  the  protection  of  the  cred- 
itor or  the  relief  of  the  debtor.  The  necessity  for 
uniform  legislation  on  this  subject  vindicates  the 
wisdom  of  vesting  the  national  government  with 
the  power  to  regulate  the  question. 

Paragraph  19,  §  24,  of  the  Judicial  Code,  confers  on  the 
district  court  original  jurisdiction  of  all  matters  and  pro- 
ceedings in  bankruptcy. 

Article  1,  §  8,  of  the  Constitution,  conferred  power  upon 
Congress,  among  other  things,  to  establish  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United 
States.  This  power  was  not  exercised  until  1800,  when 
the  first  bankrupt  law  was  passed.  It  remained  in  force  but 
a  short  time.  In  1841  another  bankrupt  law  was  passed, 
which  also  was  repealed  very  shortly.  Soon  after  the  Civil 
War,  and  largely  in  consequence  of  the  financial  misfor- 
tunes which  had  been  caused  by  it,  the  act  of  March  2, 
1867,  was  passed.  This  law  remained  in  force  for  over 
twenty  years,  when  it,  too,  was  repealed.  Then  for  a 
period  of  about  twenty  years  no  national  bankrupt  law  was 
in  force,  but  the  act  of  July  1,  1898,  put  into  force  the 
present  statute  on  the  subject. 

Bankrupt  laws  are  based  upon  sound  reasons  of  public 
policy,  and  the  importance  of  having  uniform  laws  of  this 
character  throughout  the  United  States  was  the  main  rea- 


§  33)  POLICY   OF  LEGISLATION  85 

son  which  induced  the  authors  of  the  national  Constitu- 
tion to  confide  that  power  to  Congress  instead  of  the 
states.  By  a  national  bankrupt  law  the  rights  of  creditors 
can  best  be  protected  against  frauds  of  dishonest  debtors 
and  partial  state  legislation  in  favor  of  the  resident  debtor 
against  the  nonresident  creditor.  On  the  other  hand,  a 
national  bankrupt  law,  as  distinguished  from  a  state  law, 
is  in  the  interest  of  the  honest  debtor  as  well,  for  thereby 
alone  can  he  obtain  a  release  from  all  of  his  debts;  since 
a  state  statute,  which  has  no  extraterritorial  jurisdiction, 
could  not  discharge  him  from  the  claims  of  nonresident 
creditors.  The  proper  purposes  of  a  bankrupt  act,  there- 
fore, are  to  protect  creditors  from  fraud,  to  secure  an  equal 
and  equitable  distribution  of  a  debtor's  estate  among  his 
creditors,  and  to  relieve  honest  debtors  from  the  burden 
of  debts  which  have  fallen  upon  them  through  misfor- 
tune, and  which  they  could  never  pay.  The  state  itself,  as 
has  been  well  said,  has  an  interest  in  extending  this  relief 
to  such  debtors,  since  it  is  for  the  good  of  the  state  that  all 
its  members  should  be  industrious,  and  contribute  their 
efforts  to  building  up  the  general  prosperity.  Any  one 
who  has  been  so  unfortunate  as  to  contract  an  enormous 
load  of  indebtedness,  which  he  recognizes  to  be  beyond  his 
ability  to  pay,  even  by  the  labor  of  a  lifetime,  is  liable  to 
have  his  industry  paralyzed,  and  to  become  a  mere  drone 
on  society.  On  the  other  hand,  if  he  is  allowed  to  turn 
over  all  his  property  as  a  trust  fund  to  his  creditors,  and 
secure  a  discharge  from  his  indebtedness,  he  can  start  life 
anew,  with  the  feeling  that  he  will  reap  some  benefit  from 
his  labor,  and  will  thereby  be  induced  again  to  become  a 
useful  member  of  the  body  politic. 

The  policy  of  bankrupt  laws  has  varied  according  as  the 
lawmakers  have  had  most  in  mind  the  protection  of  the 
creditor  or  the  relief  of  the  debtor.  The  act  of  March  2, 
1867,  with  which  the  older  members  of  the  bar  are  familiar, 
was  mainly  a  collection  law  in  the  interest  of  the  creditor, 


86  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

though  it  did  not  entirely  lose  sight  of  the  interest  of  the 
debtor.  The  present  law  was  in  its  inception  mainly  in  the 
interest  of  the  debtor.  Subsequent  amendments,  however, 
have  changed  this  considerably,  and  made  it  more  of  a 
collection  law,  though  it  still  remains  as  to  its  distinctive 
features  primarily  in  the  interest  of  the  debtor. 

A  bankrupt  law  is  in  a  certain  sense  a  proceeding  in 
rem.  It  treats  the  debtor's  property  as  a  trust  fund,  takes 
charge  of  it  through  the  machinery  of  the  bankrupt  court, 
and  divides  it  among  his  creditors.2 

Nothing  can  better  illustrate  the  advance  in  civilization 
than  the  contrast  between  the  present  and  former  meth- 
ods of  treating  the  debtor.  The  old  laws  of  imprisonment 
for  debt  locked  up  many  deserving,  talented,  and  industri- 
ous citizens,  withdrew  them  from  the  general  class  of  pro- 
ducers, and  made  them  a  charge  upon  the  community. 
The  horrors  of  this  state  of  affairs  have  played  too  promi- 
nent a  part,  in  history  and  literature,  to  require  more  than 
a  passing  reminder.  On  the  other  hand,  the  abolition  of 
imprisonment  for  debt  and  the  enactment  of  the  bankrupt 
laws  have  placed  every  citizen  in  a  position  where  he  not 
only  can,  but  probably  will,  labor  for  the  general  weal,  as 
he  still  has  left  the  motive  of  acquisition,  which  is  the 
mainspring  of  prosperity. 

In  view  of  the  object  of  a  bankrupt  law,  the  courts  have 
treated  such  laws,  not  as  special  statutory  proceedings,  to 
be  strictly  construed,  like  attachment  laws,  but  as  remedial, 
and  to  be  liberally  construed.  On  this  point  Judge  Deady 
has  said  in  In  re  Muller: 3  "In  the  course  of  the  argument 
counsel  have  insisted  that  this  is  a  special  proceeding, 
purely  statutory,  and  that  the  act  must  be  taken  most 

2  Hills  v.  The  McKimmiss  Co.  (D.  C.)  188  Fed.  1012.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  3,  4. 

a  Fed.  Cas.  No.  9,912.  See,  also,  Blake,  Moffit  &  Towne  v.  Valen- 
tine (D.  C.)  89  Fed.  691;  Norcross  v.  Nathan  (D.  C.)  99  Fed.  418; 
Botts  v.  Hammond,  99  Fed.  916,  920,  40  C.  C.  A.  179.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  S,  4. 


§  34)  CONSTITUTIONALITY   OF  LEGISLATION  87 

strictly  against  the  creditor  and  in  favor  of  the  bankrupt. 
In  my  judgment,  this  view  of  the  matter  is  not  supported 
by  reason  or  authority.  The  act  does  not  attempt  to  pun- 
ish the  bankrupt,  but  to  distribute  his  property  fairly  and 
impartially  between  his  creditors,  to  whom  in  justice  it 
belongs.  It  is  remedial,  and  seeks  to  protect  the  honest 
creditor  from  being  overreached  and  defrauded  by  the  un- 
scrupulous. It  is  intended  to  relieve  the  honest  but  un- 
fortunate debtor  from  the  burden  of  liabilities  which  he 
cannot  discharge,  and  allow  him  to  commence  the  business 
of  life  anew.  The  power  to  pass  bankrupt  laws  is  one  of 
the  express  grants  of  power  to  the  national  government, 
and  history  teaches  that  the  want  of  a  uniform  law  on  this 
subject  throughout  the  states  was  one  of  the  prominent 
causes  which  led  to  the  assembling  of  the  constitutional 
convention,  and  consequent  formation  and  adoption  of  the 
federal  Constitution.  Such  a  statute  is  not  to  be  con- 
strued strictly,  as  if  it  were  an  obscure  or  special  penal  en- 
actment, and  this  was  the  sixteenth  instead  of  the  nine- 
teenth century.  The  act  establishes  a  system,  and  regu- 
lates, in  all  their  details,  the  relative  rights  and  duties  of 
debtor  and  creditor.  Such  an  act  must  be  construed — as, 
indeed,  should  all  acts — according  to  the  fair  import  of  its 
terms,  with  a  view  to  effect  its  objects  and  to  promote  jus- 
tice." 

CONSTITUTIONALITY  OF  BANKRUPT  LEGIS- 
LATION 

34.  A  national  bankrupt  law  may  constitutionally  provide 
for  discharges  from  debts  existing  at  the  time  of 
its  passage;  also  for  an  adjudication  without  no- 
tice to  creditors.  It  may  limit  the  classes  to  which 
it  applies,  and  adopt  state  exemptions,  though 
they  vary  in  the  different  states,  without  contra- 
vening the  constitutional  requirement  of  uniform- 
ity. 


88  DISTRICT   COUET — BANKRUPTCY  (Ch.  5 

Although  the  Constitution  forbids  a  state  from  passing 
any  laws  that  would  impair  the  obligation  of  contracts, 
there  is  no  similar  prohibition  against  congressional  ac- 
tion. For  this  reason  a  national  bankrupt  law  can  ac- 
complish the  objects  of  bankruptcy  legislation  when  a 
state  law  could  not;  for  Congress  can  pass  a  bankrupt  law 
that  would  authorize  the  discharge  of  the  debtor  not  only 
from  debts  incurred  subsequent  to  the  passage  of  the  law, 
but  also  from  debts  existing  at  the  time  of  its  passage.* 
Under  its  power  to  pass  a  bankrupt  law,  Congress  can  also 
prescribe  penal  offenses  for  violation  of  its  provisions,  but 
it  could  not  make  a  penal  law  ex  post  facto ;  so  that  an  act 
innocent  at  the  time  it  was  committed  cannot  be  made, 
even  by  Congress,  an  offense  upon  the  happening  of  some 
subsequent  act  either  of  the  bankrupt  or  another.5 

As  a  bankrupt  procedure  is  in  the  nature  of  a  proceed- 
ing in  rem,  a  bankrupt  law  is  not  invalid,  as  depriving 
creditors  of  their  property  without  due  process  of  law,  be- 
cause it  fails  to  provide  for  notice  to  them  of  the  adjudi- 
cation of  bankruptcy.  Under  the  voluntary  proceeding, 
as  will  be  seen  later  on,  the  debtor,  on  filing  his  petition, 
is  adjudged  a  bankrupt  by  the  court  without  giving  notice 
to  his  creditors ;  but  the  law  requires  notice  of  subsequent 
proceedings  to  be  given,  so  that,  before  any  distribution 
of  the  property  so  surrendered  by  the  debtor,  the  creditors 
have  ample  opportunity  to  prove  their  claims  and  litigate 
any  questions  in  which  they  are  interested.  They  also 
have  opportunity  to  contest  the  right  of  the  bankrupt  to  a 
discharge ;  hence  they  have  their  day  in  court,  and  the  law 
for  that  reason  is  constitutional.6 

*  In  re  Owens,  Fed.  Cas.  No.  10,032 ;  Darling  v.  Berry  (C.  C.)  13 
Fed.  659.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  §  2. 

5  U.  S.  v.  Fox,  95  IT.  S.  670,  24  L.  Ed.  538.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  6;  Cent.  Dig.  §  2. 

e  HANOVER  NAT.  BANK  v.  MOYSES,  186  U.  S.  181,  22  Sup.  Ct. 
857,  46  L.  Ed.  1113.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  S; 
Cent.  Dig.  §  1;  "Constitutional  Law,"  Dec.  Dig.  (Key-No.)  §  309; 
Cent.  Dig.  §§  929,  930. 


§  34)  CONSTITUTIONALITY    OF   LEGISLATION  89 

The  Constitution,  giving  Congress  the  power  to  enact 
bankruptcy  laws,  requires  that  they  shall  be  uniform. 
The  present  act  and  the  act  of  March  2,  1867,  provided  that 
the  exemptions  allowed  by  the  different  state  laws  should 
be  preserved  for  the  benefit  of  the  bankrupt.  As  these 
varied  in  different  states,  it  was  contended  under  both  of 
these  statutes  that  the  law  was  unconstitutional  for  lack 
of  uniformity;  but  the  courts  have  decided  that  this  pro- 
vision did  not  destroy  its  uniformity,  as  it  was  uniform  in 
its  general  provisions  and  procedure,  and  the  states  could 
best  judge  of  the  need  of  an  exemption  and  the  extent 
of  it.7 

Nor  does  the  act  in  its  original  form  lose  its  character 
of  uniformity  from  the  fact  that  it  allowed  individuals  to 
file  a  voluntary  petition,  but  denied  that  privilege  to  a  cor- 
poration, and  the  further  fact  that  it  limited  the  right  of 
proceeding  in  involuntary  cases  to  a  certain  class  of  cor- 
porations; for  the  law  is  still  uniform  as  to  the  classes  af- 
fected by  it,  and  it  is  within  the  discretion  of  Congress  to 
regulate  the  parties  to  whom  such  a  law  shall  apply.  The 
original  bankrupt  legislation  of  England  applied  only  to 
traders,  and  the  earlier  legislation  of  this  country  was 
limited  in  the  same  way.  There  are  not  the  same  reasons 
for  giving  a  corporation  a  discharge  from  its  debts  that  ex- 
ist in  the  case  of  an  individual.  The  ordinary  procedure 
for  winding  up  corporations  is  usually  adequate,  and,  as 
to  them,  the  reason  of  state  policy  which  requires  the  debt- 
or to  be  encouraged  by  a  discharge,  in  order  to  induce  him 
to  continue  his  labors,  does  not  apply.  Hence  the  only 
reason  for  applying  a  bankrupt  law  to  a  corporation  is  to 
secure  an  equitable  distribution  of  its  assets  among  its 
creditors,  and  that  can  ordinarily  be  accomplished  in  other 
ways.  Therefore  Congress  can,  in  its  discretion,  discrim- 

7  In  re  Beckerford,  Fed.  Cas.  No.  1,209 ;  Darling  v.  Berry  (C.  C.) 
13  Fed.  659;  HANOVER  NAT.  BANK  v.  MOYSES,  186  U.  S.  181, 
22  Sup.  Ct.  857,  46  L.  Ed.  1113.  See  "Bankruptcy,"  Dec.  Dig.  (Key- 
A'o.)  §  3;  Cent.  Dig.  §  1. 


90  DISTRICT   COUBT — BANKRUPTCY  (Ch.  5 

inate  between  corporations  and  individuals,  and  also  as 
among  corporations  themselves,  in  deciding  whether  to 
make  a  bankrupt  law  apply.8 


SAME—EFFECT  OF  FEDERAL  ON  STATE  LEG- 
ISLATION 

35.  The  national  bankrupt  laws  do  not  invalidate  state 
laws,  but  only  cause  them  to  become  inoperative 
while  the  federal  law  remains  in  force. 

Validity  of  State  Insolvent  Laivs,  and  Effect  on  Such  Laws 

of  National  Bankrupt  Legislation 

In  the  absence  of  any  national  bankrupt  legislation,  a 
state  can  pass  laws  in  the  nature  of  local  insolvent  laws, 
intended  to  secure  an  equitable  distribution  of  a  debtor's 
estate  among  his  creditors,  and  to  relieve  a  debtor  of  an 
unbearable  load  of  debt ;  but,  from  their  nature,  these  local 
laws  can  but  partially  accomplish  their  object.  In  the 
first  place,  the  state  cannot  make  them  applicable  to  debts 
existing  at  the  time  of  their  passage,  for  the  constitutional 
provision  against  impairing  the  obligation  of  contracts 
stands  in  the  path.  Nor  can  a  state  make  such  a  law  bind- 
ing on  parties  living  beyond  its  jurisdiction,  as  the  pow- 
er of  a  state  does  not  extend  beyond  its  own  territory,  and 
hence  it  cannot  provide  for  giving  the  notice  necessary  to 
bind  nonresidents.  Such  laws,  however,  are  binding  upon 
such  nonresidents  as  voluntarily  appear  in  the  state  court, 
prove  their  claim,  and  participate  in  the  proceeding,  for 
it  is  a  mere  question  of  notice,  and  by  so  appearing  they 
submit  themselves  to  the  jurisdiction  of  the  state  court.9 

sLeidigh  Carriage  Co.  v.  Stengel,  95  Fed.  637,  37  C.  C.  A.  210; 
HANOVER  NAT.  BANK  v.  MOYSES,  186  TJ.  S.  181,  22  Sup.  Ct  857, 
46  L.  Ed.  1113.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  48;  Cent. 
Dig.  §  38. 

»  Baldwin  v.  Hale,  1  Wall.  223,  17  L.  Ed.  531 ;  OILMAN  v.  LOCK- 
WOOD,  4  Wall.  409,  18  L.  Ed.  432 ;  Brown  v.  Smart,  145  U.  S.  454, 


§  35)        EFFECT  OF  FEDERAL  ON  STATE   LEGISLATION  91 

When  such  state  laws  are  in  existence,  and  a  national 
bankrupt  law  is  passed,  it  supersedes  but  does  not  have 
the  effect  of  completely  nullifying  the  state  law.  It  leaves 
it  in  a  state  of  suspended  animation,  so  that  the  instant 
the  bankrupt  law  is  repealed  the  state  law  conies  again  in- 
to effect,  without  any  additional  legislation  by  the  state. 
On  the  same  theory,  if  a  state  enacts  a  local  law  while  a 
bankrupt  law  is  in  existence,  that  law  is  not  absolutely 
null  and  void;  it  remains  in  suspension  until  the  national 
bankrupt  law  is  repealed,  and  then  it  takes  immediate  ef- 
fect.10 But  state  laws  giving  additional  remedies  in  aid 
of  execution  or  in  cases  not  covered  by  the  bankrupt  law 
are  not  superseded.11 

State  laws  regulating  the  administration  of  property 
conveyed  under  general  assignments  are  not  necessarily 
insolvent  laws;  and  proceedings  under  them  may  be  sus- 
tained when  not  in  conflict  with  the  bankrupt  law,  or  in 
the  absence  of  bankruptcy  proceedings.12 

12  Sup.  Ct.  958,  36  L.  Ed.  773.  See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §  9;  Cent.  Dig.  §§  7-9;  "Assignments  for  Benefit  of  Creditors," 
Dec.  Dig.  (Key-No.)  §  23;  Cent.  Dig.  §§  75-77,  88;  "Insolvency,"  Dec. 
Dig.  (Key-No.)  §  2;  Cent.  Dig.  §  1. 

ioTua  v.  Carriere,  117  U.  S.  201,  6  Sup.  Ct.  565,  29  L.  Ed.  855; 
Butler  v.  Goreley,  146  U.  S.  303,  13  Sup.  Ct.  84,  36  L.  Ed.  981 ;  In  re 
Salmon  &  Salmon  (D.  C.)  143  Fed.  395;  In  re  Pickens  Mfg.  Co.  (D. 
<3.)  158  Fed.  894.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  9;  Cent. 
Dig.  §§  7-9. 

11  Ex  parte  Crawford,  154  Fed.  769,  83  C.  C.  A.  474;   State  Nation- 
al Bank  v.  Syndicate  Co.  (C.  C.)  178  Fed.  359.     See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  9;   Cent.  Dig.  §§  7-9. 

12  Johnson  v.  Crawford  (C.  C.)  154  Fed.  761;    In  re  Farrell,  176 
Fed.  505,  100  C.  C.  A.  63.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
S;  Cent.  Dig.  §§  7-9;  "Assignments  for  Benefit  of  Creditors"  Dec. 
Dig.  (Key-No.)  §  23;    Cent.  Dig.  §§  75-77,  88. 


92  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 


THE  BANKRUPTCY  COURTS 

36.  The  courts  of  bankruptcy  as  designated  by  the  statute, 
in  the  preliminary  definitions,  are  the  district 
courts  of  the  United  States  and  of  the  territories, 
the  supreme  court  of  the  District  of  Columbia, 
and  the  United  States  courts  of  the  Indian  Terri- 
tory and  of  Alaska,  and  these  tribunals  are  invest- 
ed with  such  powers  as  will  enable  them  to  exer- 
cise control  in  matters  of  bankruptcy. 
The  question  of  the  proper  forum,  as  to  locality,  is  fixed 
by  the  terms  of  the  statute,  together  with  certain 
rules  of  the  Supreme  Court  promulgated  under 
the  authority  of  the  statute. 

The  second  section  of  the  bankrupt  act  provides  that 
"the  courts  of  bankruptcy,  as  hereinbefore  denned,  name- 
ly, the  district  courts  of  the  United  States  in  the  several 
states,  the  supreme  court  of  the  District  of  Columbia,  the 
district  courts  of  the  several  territories,  and  the  United 
States  courts  in  the  Indian  Territory  and  the  district  of 
Alaska,  are  hereby  made  courts  of  bankruptcy,  and  are 
hereby  invested,  within  their  respective  territorial  limits 
as  now  established,  or  as  they  may  be  hereafter  changed, 
with  such  jurisdiction  at  law  and  in  equity  as  will  enable 
them  to  exercise  original  jurisdiction  in  bankruptcy  pro- 
ceedings in  vacation,  in  chambers  and  during  their  respec- 
tive terms,  as  they  are  now  or  may  be  hereafter  held,"  to 
do  the  various  things  incidental  to  the  administration  of 
the  bankruptcy  law. 

The  Proper  Forum  as  to  Locality 

Under  this  section,  the  court  having  jurisdiction  to  ad- 
judge a  person  bankrupt  is  the  court  of  the  district  where- 
in the  bankrupt  has  had  his  principal  place  of  business, 
resided,  or  had  his  domicile  for  the  preceding  six  months,. 


§  36)  THE   BANKRUPTCY   COURTS  93 

or  the  greater  portion  thereof,  or  who,  though  not  having 
his  principal  business,  residence,  or  domicile  within  the 
United  States,  has  property  within  its  jurisdiction,  or  who, 
though  without  the  United  States,  has  been  adjudged  bank- 
rupt by  a  court  of  competent  jurisdiction,  and  has  property 
within  the  jurisdiction  of  such  district  court.  Under  sec- 
tion 30  of  the  bankrupt  law  the  Supreme  Court  is  given 
the  power  to  prescribe  necessary  rules,  forms,  and  orders 
as  to  procedure  in  bankruptcy;  and,  pursuant  to  that 
right,  certain  rules  were  made  by  the  Supreme  Court  at 
the  October  term,  1898,  the  first  term  after  the  bankrupt 
law  was  enacted.  Under  this  power  the  court  has  pre- 
scribed that,  where  a  proceeding  has  been  instituted  in 
more  than  one  district,  the  first  hearing  shall  be  had  in 
the  district  in  which  the  debtor  has  his  domicile,  but  in 
case  of  partnerships  the  first  hearing  shall  be  had  on  the 
petition  first  filed,  or,  in  case  of  voluntary  petitions  by  dif- 
ferent members  of  the  same  partnership,  the  court  in  which 
the  petition  is  first  filed  shall  take  and  retain  jurisdiction, 
subject  to  the  right  prescribed  by  the  bankrupt  act  to  trans- 
fer cases  to  the  district  where  it  can  be  proceeded  with 
for  the  greatest  convenience  of  parties  in  interest.13 

Under  these  provisions,  where  a  bankrupt  had  a  work- 
shop in  one  district,  but  carried  on  business  on  his  own 
account  in  another,  it  was  held  that  the  latter  was  a  prop- 
er district  in  which  to  file  a  petition,  though  the  court  did 
not  go  so  far  as  to  say  that  it  could  not  have  been  filed  in 
the  other.14  So  in  an  involuntary  proceeding  against  a 
corporation  which  had  its  main  works  in  Rhode  Island, 
but  had  shut  down  there,  and  continued  business  in  New 
York,  where  its  executive  and  banking  business  was  done, 
it  was  held  that  the  petition  could  properly  be  filed  in  New 
York.15  In  the  case  of  a  party  who  spent  most  of  his 

is  Bankr.  Rule  6,  172  U.  S.  654,  18  Sup.  Ct.  v,  43  L.  Ed.  1189. 
i*  Tiffany  v.  La  Plume  Condensed  Milk  Co.  (D.  C.)  141  Fed.  444. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §  20. 

is  In  re  Marine  Machine  &  Conveyor  Co.  (D.  C.)  91  Fed.  630.    The 


94  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

time  abroad,  it  was  held  that  he  could  still  file  his  petition 
in  the  district  of  his  domicile,  if  his  original  domicile  had 
not  been  given  up,  and  he  had  returned  before  filing  his 
petition,  with  the  intention  of  making  his  home  at  that 
point.16  Under  the  power  to  transfer  from  one  district 
to  another  given  by  section  32  of  the  act,  an  involuntary 
petition  had  been  filed  in  Georgia,  and  the  debtor  had  filed 
his  voluntary  petition  in  New  York.  He  had  lived  in 
Georgia.  The  great  bulk  of  his  debts  had  been  contracted 
there,  and  he  was  an  employe  of  a  corporation  which  was 
located  in  Georgia,  and  had  succeeded  to  the  business  of 
his  former  firm.  It  was  held  in  this  case  that  Georgia  was 
the  proper  and  most  convenient  district,  and  that  the  right 
to  transfer  applied  not  simply  to  involuntary  cases,  but 
to  an  involuntary  proceeding  in  one  district,  and  a  volun- 
tary in  another.17  But  if  a  petition  is  filed  where  the  debt- 
or had  not  resided  or  been  domiciled,  a  creditor  who  wishes 
to  object  must  do  so  promptly.  He  cannot  come  into  the 
proceeding,  prove  his  claim,  and  then  urge  this  lack  of  ju- 
risdiction in  opposition  to  the  bankrupt's  discharge;  for 
by  coming  into  the  proceeding  he  has  waived  any  objec- 
tions to  jurisdiction;  the  question  being  merely  one  of 
personal  jurisdiction,  and  not  of  jurisdiction  over  the  sub- 
ject-matter.18 

principal  place  of  business  of  a  corporation  is  a  question  of  fact,  not 
necessarily  controlled  by  its  charter.  Burdick  v.  Dillon,  144  Fed. 
737,  75  C.  C.  A.  603 ;  In  re  Matthews  Consolidated  Slate  Co.  (D.  C.) 
144  Fed.  724 ;  In  re  Pennsylvania  Consolidated  Coal  Co.  (D.  C.)  163 
Fed.  579;  In  re  Perry  Aldrich  Co.  (D.  C.)  165  Fed.  249.  The  fact 
that  it  has  ceased  operations  where  it  had  been  conducting  its  prin- 
cipal business,  and  is  engaged  in  liquidating  its  affairs,  does  not 
prevent  proceedings  against  it  in  such  district.  Tiffany  v.  La  Plume 
Condensed  Milk  Co.  (D.  C.)  141  Fed.  444;  Robertson  v.  Union  Pot- 
teries Co.  (D.  C.)  177  Fed.  279.  See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §  16;  Cent.  Dig.  §  20. 

IB  In  re  Williams  (D.  C.)  99  Fed.  544.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  14;  Cent.  Dig.  §  20. 

IT  in  re  Waxelbaum  (D.  C.)  98  Fed.  589.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No^  §  18;  Cent.  Dig.  §  22. 

is  in  re  Worsham,  142  Fed.  121,  73  C.  C.  A.  665;  In  re  Walrath 


§  37)  PARTIES  95 

PARTIES— VOLUNTARY  PROCEEDINGS 

37.  Any  person  who  owes  debts,  except  certain  corpora- 
tions, may  avail  himself  of  the  benefits  of  the  act 
as  a  voluntary  bankrupt.  This,  however,  does 
not  apply  to  any  one  non  compos  mentis,  nor  to 
one  under  legal  disability. 

This  applies  to  a  resident  alien.19  Notwithstanding  its 
broad  language,  however,  there  are  some  parties  who  can- 
not avail  of  the  act.  An  infant  cannot  file  a  voluntary  pe- 
tition in  bankruptcy,  nor  can  an  involuntary  petition  be 
filed  against  him ;  for  an  infant  needs  no  discharge  against 
the  great  mass  of  his  debts.  Hence,  where  an  involuntary 
proceeding  had  been  instituted  against  a  partnership  which 
had  an  infant  member,  the  proceeding  was  dismissed  as  to 
him,  though  it  was  retained  as  to  the  other  partners.20  On 
similar  principles,  a  lunatic  cannot  file  a  voluntary  petition, 
nor  can  an  involuntary  petition  be  filed  against  him  for 
debts  incurred  while  non  compos  mentis,  as  a  lunatic  could 
not  commit  an  act  of  bankruptcy.  If,  however,  the  act  of 
bankruptcy  was  committed  while  sane,  his  supervening 
lunacy  would  not  prevent  a  procedure  against  him.21  Nor 
can  a  married  woman  file  a  voluntary  petition,  or  be  pro- 
ceeded against,  except  in  states  where  her  common-law 


(D.  C.)  175  Fed.  243.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  21; 
Cent.  Dig.  §  24. 

is  In  re  Boynton  (D.  C.)  10  Fed.  277.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  13;   Cent.  Dig.  §§  13-16. 

20  in  re  Duguid  (D.  C.)  100  Fed.  274;    In  re  Stein,  127  Fed.  547, 
62  C.  C.  A.  272 ;  Jennings  v.  Stannus,  191  Fed.  347,  112  C.  C.  A.  91. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  13;  Cent.  Dig.  §§  13-16. 

21  In  re  Marvin,  Fed.  Cas.  No.  9,178;    In  re  Pratt,  Fed.  Gas.  No. 
11,371 ;    In  re  Weitzel,  Fed.  Cas.  No.  17,365 ;    In  re  Kehler,  153  Fed. 
235 ;   Id.,  159  Fed.  55,  86  C.  C.  A.  245.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  13;  Cent.  Dig.  §§  13-16. 


96  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

disabilities  have  been  removed,  and  she  has  power  to  con- 
tract.22 

The  eighth  section  of  the  present  bankrupt  law  provides, 
also,  that  the  death  or  insanity  of  the  bankrupt  shall  not 
abate  the  proceedings.  This  alludes  to  death  or  insanity 
supervening  after  the  filing  of  the  petition.  The  original 
act  excluded  corporations  from  the  class  entitled  to  file 
voluntary  petitions.  But  the  amendment  of  June  25, 
1910,23  changed  this  so  as  to  deny  the  privilege  only  to 
"municipal,  railroad,  insurance  or  banking  corporations." 


SAME— INVOLUNTARY  PROCEEDINGS 

38.  Under  the  fourth  section  of  the  bankrupt  act,  as  amend- 
ed February  5,  1903,  and  June  25,  1910,  any  natu- 
ral person,  except  a  wage  earner,  or  a  person  en- 
gaged chiefly  in  farming  or  tillage  of  the  soil,  any 
unincorporated  company,  and  any  moneyed,  busi- 
ness or  commercial  corporation,  except  a  munici- 
pal, railroad,  insurance  or  banking  corporation, 
owing  debts  to  the  amount  of  one  thousand  dol- 
lars or  over,  may  be  adjudged  an  involuntary 
bankrupt.  This  is  inapplicable  to  persons  under 
legal  disabilities,  on  the  same  principle  as  the  ex- 
ception above  stated  in  the  case  of  voluntary 
bankruptcy. 

For  reasons  already  given,  infants,  lunatics,  and  married 
women  cannot  be  proceeded  against  under  the  qualifica- 
tions stated,  so  that  they  are  excepted  as  much  as  if  they 
had  been  expressly  named.  All  other  natural  persons,  ex- 

22  In  re  Kinkead,  Fed.  Gas.  No.  7,824;    In  re  Goodman,  Fed.  Gas. 
No.  5,540;    McDonald  v.  Tefft-Weller  Co.,  128  Fed.  381,  63  C.  C.  A. 
123,  65  L.  R.  A.  106.     See  "Bankruptcy,"  Dec.  Dig.  (Key-Xo.)  §  13; 
Cent.  Dig.  §§  13-16. 

23  36  Stat.  838  (U.  S.  Comp.  St  Supp.  1911,  p.  1493). 


§  38)  PARTIES  97 

cept  those  named  in  the  act,  may  be  proceeded  against. 
The  better  opinion  is  that  the  status  of  the  party  at  the 
time  of  the  act  of  bankruptcy  governs.24 

Wage  Earners  and  Farmers 

The  exception  of  wage  earners  from  the  list  of  involun- 
tary bankrupts  introduces  a  large  field  for  construction  by 
the  courts.  The  twenty-seventh  of  the  preliminary  defini- 
tions in  the  act  defines  it  as  meaning  an  individual  who 
works  for  wages,  salary,  or  hire,  at  a  rate  of  compensation 
not  exceeding  $1,500  per  .year.  But  for  this  definition,  it 
would  probably  have  been  held  to  include  those  who  work 
for  wages,  as  distinguished  from  those  who  work  for  sal- 
aries, or  compensation  measured  by  the  work  rather  than 
the  period.  The  word  "wages"  usually  implies  the  com- 
pensation of  persons  of  small  means.25  Counsel  fees  are 
considered  as  above  the  grade  of  wages,  and  could  hardly 
be  included.26  Under  similar  statutes,  like  lien  acts,  a  con- 
tractor is  not  usually  counted  as  an  employe,  nor  his  com- 
pensation as  wages.27  Another  section  of  the  act  (section 
64)  names  among  the  preferred  debts  wages  due  to  work- 
men, clerks,  or  servants.  It  is  not  entirely  safe  to  consid- 
er the  decisions  construing  this  section  as  in  point  in  refer- 
ence to  the  meaning  of  "wage  earner,"  for  the  use  of  dif- 
ferent language  by  Congress  is  indicative  of  different  in- 
tent; and,  besides,  a  clause  changing  the  ordinary  rule  of 
equality  would  be  .more  strictly  construed  than  the  first. 
Under  this  latter  section,  however,  it  has  been  held  that 

2*  In  re  Leland  (D.  C.)  185  Fed.  830.  Compare  In  re  Wakefield 
(D.  C.)  182  Fed.  247.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  67; 
Cent.  Dig.  §§  17-18,  86,  87. 

25  Gordon  v.  Jennings,  9  Q.  B.  Div.  45.     See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  68;   Cent.  Dig.  §§  18,  86,  87. 

26  Louisville,  E.  &  St  L.  R.  Co.  v.  Wilson,  138  U.  S.  501,  11  Sup. 
Ct.  405,  34  L.  Ed.  1023.     See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
68;    Cent.  Dig.  §§  18,  86,  87. 

27  Riley  v.  Warden,  2  Exch.  59;    Vane  v.  Newcombe,  132  U.  S. 
220,  10  Sup.  Ct.  60,  33  L.   Ed.  310.     See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  68;    Cent.  Dig.  §§  18,  86,  87. 

HUGHES  FED.Pu.(2D  ED.) — 7 


98  DISTEICT   COURT — BANKRUPTCY  (Ch.  5 

a  traveling  salesman  who  is  paid  a  salary  of  five  thousand 
dollars  does  not  secure  any  priority  on  account  of  "wages 
due  to  workmen,  clerks,  or  servants." 28  Nor  does  the 
clause  apply  to  the  general  manager  of  a  mercantile  cor- 
poration, who  is  paid  a  salary  of  twelve  hundred  dollars 
per  annum,  or  to  the  president  of  a  business  corporation 
who  is  paid  a  salary  of  seven  hundred  dollars  per  annum.29 
As  to  tillers  of  the  soil,  reference  may  be  made  to  the 
cases  cited  below.80 

Decedents 

There  is  no  such  thing  as  a  proceeding  in  involuntary 
bankruptcy  against  a  decedent's  estate.31  The  reason  is 
that  the  ordinary  laws  for  the  administration  of  estates 
give  ample  remedies  for  securing  its  just  distribution 
among  creditors ;  and,  as  far  as  the  debtor  is  concerned,  he 
can  hardly  be  considered  as  interested  in  securing  a  dis- 
charge. 

Corporations 

As  to  the  corporations  against  whom  involuntary  pro- 
ceedings may  be  taken,  the  policy  of  the  law  in  its  original 
form  was  very  different  from  that  of  the  act  of  March  2, 
1867  (14  Stat.  517,  c.  176).  That  act  allowed  the  proceed- 
ing against  all  moneyed,  business,  and  commercial  corpo- 


ss  in  re  Scanlan  (D.  C.)  97  Fed.  26;  In  re  Greenewald  (D.  C.)  99 
Fed.  705.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§ 
18,  86,  87. 

2»  In  re  Grubbs-Wiley  Grocery  Co.  (D.  C.)  96  Fed.  183;  In  re  Car- 
olina Cooperage  Co.  (D.  C.)  96  Fed.  950..  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§  18,  86,  87. 

so  in  re  Thompson  (D.  C.)  102  Fed.  287;  In  re  Luckhardt  (D.  C.) 
101  Fed.  807;  In  re  Wakefield  (D.  C.)  182  Fed.  347;  In  re  Dwyer 
(C.  C.  A.)  184  Fed.  880;  American  Agricultural  Chemical  Co.  v. 
Brinkley,  194  Fed.  411,  114  C.  C.  A.  373.  Sec  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§  18,  86,  87. 

si  Adams  v.  Terrell  (C.  C.)  4  Fed.  796.  But  the  proceedings  do 
not  abate.  In  re  Hicks,  107  Fed.  910;  In  re  Spalding,  139  Fed.  244, 
71  C.  C.  A.  370.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  25,  67; 
Cent.  Dig.  §§  53,  134. 


§  39)  PLEADINGS  99 

rations  and  joint  stock  companies.  The  language  of  the 
present  act  as  originally  passed  limited  the  procedure  to 
corporations  engaged  principally  in  mining,  manufactur- 
ing, trading,  printing,  publishing  or  mercantile  pursuits. 
But  the  later  amendments  have  made  it  about  as  wide  as 
the  act  of  March  2,  1867,  and  have  rendered  useless  a  num- 
ber of  decisions  construing  the  original  act. 


PLEADINGS 

39.  Bankruptcy  proceedings  are  instituted  by  filing  a  peti- 
tion sworn  to  by  the  petitioner,  made  out  upon 
certain  forms  prescribed  by  the  Supreme  Court, 
which  petition  sets  forth  the  facts  necessary  to 
show  the  jurisdiction  and  the  grounds  of  bank- 
ruptcy. 

With  the  voluntary  petition  are  filed  various  schedules 
showing  creditors,  liabilities,  assets,  securities, 
and  exemptions.  In  the  involuntary  proceeding 
the  schedules  need  only  be  furnished  by  the  pe- 
titioner in  the  event  the  bankrupt  is  absent  or 
cannot  be  found.  All  creditors  with  provable 
claims  can  file  petitions  in  involuntary  bankruptcy 
when  an  act  of  bankruptcy  has  been  committed. 
In  bankruptcy  proceedings,  amendments  are  free- 
ly allowed.  A  petition  once  filed  cannot  be  dis- 
missed without  notice  to  the  creditors. 

Voluntary  Proceedings 

Voluntary  proceedings  are  instituted  by  the  filing  of  a 
petition  by  the  person  entitled  to  the  benefits  of  the  act 
as  a  voluntary  bankrupt.  Form  1  82  prescribed  by  the  Su- 
preme Court  is  used  for  this  purpose.  It  contains  allega- 
tions necessary  to  show  the  court  the  district  in  which  it 

32  172  U.  S.  C67,  18  Sup.  Ct.  xi,  43  L.  Ed.  1195. 


100  DISTRICT  COURT — BANKRUPTCY  (Ch.  5 

should  be  filed;  also  a  statement  that  the  petitioner  owes 
debts  which  he  is  unable  to  pay  in  full,  and  that  he  is 
willing  to  surrender  his  property  for  the  benefit  of  his 
creditors,  except  such  as  is  exempt  by  law,  and  that  he 
desires  to  obtain  the  benefit  of  the  bankrupt  act.  It  ends 
by  a  prayer  that  he  be  adjudged  a  bankrupt,  and  is  sworn 
to.  Annexed  to  the  petition  is  a  series  of  schedules. 
Schedule  A  contains  a  statement  of  the  bankrupt's  debts, 
and  is  subdivided  so  as  to  show  (1)  a  statement  of  all 
creditors  who  are  to  be  paid  in  full,  or  to  whom  priority  is 
secured  by  law;  (2)  a  statement  of  creditors  holding  secu- 
rities ;  (3)  a  statement  of  creditors  whose  claims  are  unse- 
cured; (4)  a  statement  of  the  bankrupt's  liabilities  on  paper 
for  which  others  are  primarily  liable;  and  (5)  a  statement 
of  accommodation  paper. 

Schedule  B  is  a  statement  of  the  bankrupt's  property, 
and  is  subdivided  so  as  to  show  (1)  his  real  estate;  (2) 
his  personal  property,  classified  under  numerous  subhead- 
ings; (3)  his  choses  in  action,  which  are  shown  separate 
from  his  other  personal  property;  (4)  his  property  in  re- 
version, remainder,  or  expectancy;  (5)  his  property  claim- 
ed as  exempt;  and  (6)  the  books,  papers,  and  other  docu- 
ments relating  to  his  business  and  estate.  At  the  end  of 
these  two  detailed  schedules  is  a  summary  both  of  his 
debts  and  assets.  This  form  requires  the  report  of  every 
thing  claimed  to  be  exempt,  though,  as  a  matter  of  fact, 
the  exemption  conies  under  the  control  of  the  bankrupt 
court  only  in  a  very  qualified  way.  The  eleventh  subdi- 
vision of  section  47  of  the  act  requires  the  trustee  to  set 
apart  the  bankrupt's  exemption,  and  report  the  items  and 
estimated  value  thereof  to  the  court  as  soon  as  practicable 
after  his  appointment.  While,  therefore,  the  bankrupt 
court  has  the  power  of  examining  into  the  exemption  to 
this  extent,  yet,  when  the  exemption  has  once  been  set 
apart,  it  belongs  to  the  bankrupt  exclusively,  and  the  court 
has  no  jurisdiction  of  controversies  concerning  it,  as  it  is 


§  39)  PLEADINGS  101 

not  part  of  the  trust  fund  under  the  court's  control.88     The 
'  bankrupt  court  will  follow  the  state  decisions  construing 
exemption  laws.84 

Pension  money  claimed  as  exempt  under  the  provisions 
of  the  federal  statutes  must  be  reported.85 

Partnership  Petitions 

Form  2  36  of  the  forms  prescribed  is  intended  to  be  used 
for  a  partnership  petition.  The  fifth  section  of  the  bank- 
rupt act  contains  careful  provisions  intended  to  secure  the 
distribution  of  the  partnership  assets  to  the  partnership 
debts,  and  the  individual  assets  to  the  individual  debts; 
hence  the  partnership  petition  must  not  only  show  the 
jurisdictional  facts  necessary,  as  in  the  case  of  the  in- 
dividual petition,  but  it  must  further  show  separately  the 
partnership  assets  and  the  assets  of  the  individual  part- 
ners. When  all  the  partners  join  in  a  partnership  peti- 
tion, the  proceeding  is  a  voluntary  one ;  and,  if  they  should 
join  in  the  petition,  it  is  unnecessary  for  the  individual  part- 
ners to  file  separate  petitions.37  When  a  petition  is  filed 
by  a  portion  only  of  the  partners,  which  purports  not  only 
to  be  an  individual  petition,  but  a  partnership  petition,  the 
proceeding  as  to  the  partners  who  do  not  join  therein  is  an 
involuntary  one,  and  they  are  entitled  to  notice,  and  an 
opportunity  of  contesting  the  proceeding.  This  is  required 
by  the  eighth  order  in  bankruptcy.38  An  individual  peti- 

33  in  re  Camp  (D.  C.)  91  Fed.  745;  Id.,  97  Fed.  981,  38  C.  C.  A. 
689;  In  re  Grimes  (D.  C.)  96  Fed.  529;  In  re  Yeager  (D.  C.)  182 
Fed.  951 ;  In  re  Baughman  (D.  C.)  183  Fed.  668.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  400;  Cent.  Dig.  §§  671-615. 

s*  In  re  Wyllie,  Fed.  Cas.  No.  18,112;  In  re  Gerber,  186  Fed.  693, 
108  C.  C.  A.  511.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  396; 
"Courts,"  Dec.  Dig.  (Key-No.)  §  366. 

3  s  in  re  Bean  (D.  C.)  100  Fed.  262.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §§  396,  400. 

se  172  U.  S.  679,  18  Sup.  Ct.  xviii,  43  L.  Ed.  1207. 

37  in  re  Gay  (D.  C.)  98  Fed.  870.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  44. 

ss  Metzker  v.  Bonebrake,  108  U.  S.  66,  2  Sup.  Ct.  351,  27  L.  Ed. 
654 ;  In  re  Murray  (D.  C.)  96  Fed.  600 ;  In  re  Altman  (D.  C.)  95  Fed. 


102  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

tion,  purporting  to  be  on  behalf  of  the  individual  only, 
would  not  involve  any  procedure  against  the  partnership; 
for  the  individual  member  of  a  partnership  may  be  insol- 
vent; and  the  other  partners,  and  the  partnership  itself, 
may  be  perfectly  solvent. 

As  long  as  a  partnership  owes  debts,  bankruptcy  pro- 
ceedings may  be  taken,  for  there  is  no  "final  settlement," 
in  the  language  of  the  fifth  section  of  the  act,  when  debts 
are  due,  though  there  may  be  no  assets.39 

When  a  voluntary  petition  is  filed  in  the  proper  court, 
a  bankruptcy  adjudication  is  a  matter  of  course,  and  it 
cannot  be  contested  on  the  facts.  Though  the  debtor  may 
be  solvent,  if  he  voluntarily  chooses  to  come  into  the  bank- 
rupt court  and  surrender  his  property  for  the  benefit  of  his 
creditors,  the  court,  in  the  language  of  Judge  Lowell, 
"takes  him  at  his  word,  and  makes  provision  for  carry- 
ing out  his  intention  of  distributing  his  property."  The 
creditors  would  have  no  right  to  complain,  or  to  deny  his 
right,  though  he  were  solvent;  and  hence,  in  the  case  of  a 
voluntary  petition,  it  is  not  necessary,  in  any  event,  to  al- 
lege insolvency,  and  the  creditors  have  no  right  to  contest 
the  filing  of  the  petition.40  If,  however,  a  petition  is  filed 
in  a  court  which  has  no  jurisdiction  of  it,  creditors  may, 
by  prompt  action,  move  to  dismiss  the  petition  for  want 
of  jurisdiction;  but  they  cannot  appear  and  participate  in 
the  proceeding,  and  afterwards  question  the  jurisdiction 
of  the  court  by  opposing  the  bankrupt's  discharge  on  that 
ground.41 

263;  172  U.  S.  656,  18  Sup.  Ct.  v,  43  L.  Ed.  1190;  In  re  Junck  (D. 
C.)  169  Fed.  481.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  44. 

so  in  re  Hirsch  (D.  C.)  97  Fed.  571.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-Ne.)  §  42. 

40  in  re  Jehu  (D.  C.)  94  Fed.   638;    HANOVER  NAT.   BANK  v. 
MOYSES,  186  U.  S.  181,  22  Sup.  Ct  857,  46  L.  Ed.  1113.    See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  47;   Cent.  Dig.  §§  41,  42. 

41  In  re  Waxelbaum  (D.  C.)  98  Fed.  589;    In  re  Walrath  (D.  C.) 
175  Fed.  243.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  47,  48;  Cent. 
Dig.  §§  41,  4£. 


§  39)  PLEADINGS  103 

A  bankrupt  may  amend  his  petition  by  adding  the  name 
of  creditors  omitted,  and  it  is  not  necessary  to  give  notice 
of  such  intended  amendment.42  This  right  to  amend  is 
recognized  by  the  eleventh  order  in  bankruptcy.43  When 
a  petition  has  been  filed,  it  cannot  be  dismissed  without 
notice  to  the  creditors.  This  is  required  by  paragraph  "g" 
of  section  59  of  the  act. 

Involuntary  Proceedings 

Form  3  44  provides  for  the  case  of  an  involuntary  peti- 
tion. Its  first  paragraph  shows  the  jurisdictional  facts — 
that  is,  the  debtor's  residence  or  place  of  business — and  al- 
so contains  the  allegation  that  he  owes  debts  to  the  amount 
of  one  thousand  dollars,  as  required  by  section  4b  of  the 
bankrupt  act.  It  must  show  his  business  also.45  Its  next 
paragraph  shows  that  the  petitioners  or  creditors  have 
provable  claims  in  excess  of  the  securities  held  by  them  to 
the  sum  of  five  hundred  dollars,  which  is  the  requisite  pre- 
scribed by  section  59b  of  the  act.  It  then  sets  out  the 
claims.  The  next  paragraph  alleges  insolvency,  where 
necessary,  and  charges  an  act  of  bankruptcy;  stating  the 
facts  of  the  act  of  bankruptcy  with  sufficient  certainty  to 
enable  proper  defense  to  be  made.  It  cannot  merely  fol- 
low the  language  of  the  statute.46  It  prays  for  a  sub- 

42  in  re  Hill  (D.  C.)  5  Fed.  448.    This  decision  was  under  the  act 
of  March  2,  1867  (14  Stat  517,  c.  176).    Section  17  (3)  of  the  present 
act  (Act  July  1,  1898,  c.  541,  30  Stat.  550  [U.  S.  Comp.  St.  1901,  p. 
3428])  makes  the  discharge  when  granted  bar  all  claims  that  have 
been  duly  scheduled  in  time  for  proof  and  allowance.     Section  57n 
requires  claims  to  be  proved  within  one  year  from  the  adjudication. 
Hence  an  amendment  so  late  as  to  deprive  the  creditor  from  shar- 
ing in  the  dividends  or  deny  him  a  reasonable  opportunity  of  prov- 
ing his  claim  would  be  refused.    In  re  Kittler  (D.  C.)  176  Fed.  655. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  44;   Cent.  Dig.  §§  43-46. 

43  172  U.  S.  657,  18  Sup.  Ct  v,  43  L.  Ed.  1190. 
4*  172  U.  S.  681,  18  Sup.  Ct.  six,  43  L.  Ed.  1208. 

45  In  re  Taylor,  102  Fed.  728,  42  C.  C.  A.  1.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  81;  Cent.  Dig.  §§  113-118. 

4 « In  re  Cliff e  (D.  C.)  94  Fed.  354;  In  re  Nelson  (D.  C.)  98  Fed.  76. 
Bee  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  81;  Cent.  Dig.  §§  118-118. 


104  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

poena,  and  that  the  debtor  be  adjudged  a  bankrupt,  and  is 
sworn  to.  It  would  not  seem,  under  the  language  of  the 
act,  to  be  necessary  to  file  any  schedule  with  an  invol- 
untary petition  at  the  outset,  but  the  ninth  order  in  bank- 
ruptcy 47  provides  that,  if  the  bankrupt  is  absent  or  cannot 
be  found,  the  petitioning  creditor  must  file,  within  five 
days  after  the  adjudication,  a  schedule  giving  the  names 
and  places  of  residence  of  all  the  creditors  of  the  bank- 
rupt, according  to  the  best  information  of  the  petitioning 
creditor.  The  eleventh  order  in  bankruptcy  48  allows  these^ 
petitions  also  to  be  amended.  The  amendment  may  add 
additional  grounds,  and  it  may  also  make  the  averments 
of  the  petition  more  certain.40 

Not  every  creditor  of  the  bankrupt  can  file  such  peti- 
tions. By  the  fifty-ninth  section  of  the  act,  this  can  be 
done  only  by  those  who  have  provable  claims.  Those  who 
have  preferences  cannot  prove  their  claims,  except  to  the 
excess  of  the  debt  over  the  security.  This  is  regulated  by 
the  fifty-seventh  and  fifty-ninth  sections  of  the  act. 

The  act  as  first  passed  provided  that  the  claims  of  credit- 
ors who  had  received  preferences  should  not  be  allowed 
unless  such  creditors  should  surrender  their  preferences. 
This,  however,  has  been  amended  by  the  act  of  February 
5,  1903,  so  that  the  present  form  of  this  paragraph  provides 
that  the  claims  of  creditors  who  have  received  preferences 
voidable  under  section  60,  subd.  "b,"  or  to  whom  convey- 
ances, transfers,  assignments,  or  incumbrances  void  or 
voidable  under  section  67,  subd.  "e,"  have  been  made  or 
given,  shall  not  be  allowed  unless  such  creditors  shall  sur- 
render such  preferences,  conveyances,  transfers,  assign- 
ments, or  incumbrances. 

47  172  U.  S.  656,  18  Sup.  Ct.  v,  43  L.  Ed.  1190. 

«8  172  U.  S.  657,  18  Sup.  Ct.  v,  43  L.  Ed.  1190. 

49  in  re  Mercur  (D.  C.)  95  Fed.  634;  In  re  Nelson  (D.  C.)  98  Fed. 
76;  Ryan  v.  Hendricks,  166  Fed.  94,  92  C.  C.  A.  78;  Millan  v.  Ex- 
change Bank,  183  Fed.  753,  106  C.  C.  A.  327.  See  "Bankruptcy"  Dec. 
Dig.  (Key-No.)  §  84;  Cent.  Dig.  §§  126-129. 


§  39)  PLEADINGS  105 

Under  this  amendment,  those  who  have  valid  preferences 
can  prove  their  claims  without  being  held  to  waive  their 
preferences.  Under  the  act  of  1867  it  had  been  held  that 
a  secured  creditor  who  came  into  the  proceeding  and 
proved  his  claim  waived  his  preference.50 

A  creditor  of  a  partnership  may  prove  against  an  indi- 
vidual member  of  the  partnership,  as  that  individual  is 
still  his  debtor.51 

If  the  petition  shows  the  requisite  number  and  amount 
of  creditors  and  debts  on  its  face,  the  court  has  jurisdic- 
tion, and  the  proceeding  could  not  be  attacked  collaterally 
by  showing  that,  as  a  matter  of  fact,  these  jurisdictional 
facts  did  not  exist.  Such  a  question  would  be  for  the 
bankrupt  court  itself,  and  could  not  be  inquired  into  by 
another  court  where  the  proceedings  on  their  face  appear 
to  be  regular.52  Paragraph  "f"  of  the  fifty-ninth  section  of 
the  act  allows  creditors  other  than  the  original  petitioners 
to  enter  their  appearance  at  any  time  and  join  in  the  pe- 
tition, or  to  file  an  answer,  and  be  heard  in  opposition  to 
the  petition.  If  it  develops  on  the  examination  of  the 
question  of  fact  that  there  is  a  deficiency  of  creditors,  in 
number  or  amount,  others  who  join  in  the  petition  under 
this  provision  can  be  counted,  and  the  jurisdiction  of  the 
court  will  be  upheld.53 

In  estimating  the  amount,  interest  may  be  included -as 
part  thereof.54 

BO  in  re  Bear  (D.  C.)  5  Fed.  53.  See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §§  16,  864;  Cent.  Dig.  §  504. 

51  In  re  Mercur  (D.  C.)  95  Fed.  634.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  309;    Cent.  Dig.  §§  555-564. 

52  In  re  Duncan,  Fed.  Cas.  No.  4,131;    In  re  Hecox,  164  Fed.  823, 
90  C.  C.  A.  627 ;    In  re  Dempster,  172  Fed.  357,  97  C.  C.  A.  51.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  21,  100;   Cent.  Dig.  §§  24,  141- 
144. 

s  s  in  re  Romanow  (D.  C.)  92  Fed.  510;  In  re  Bedingfield  (D.  C.) 
96  Fed.  190 ;  In  re  John  A.  Etheridge  Furniture  Co.  (D.  C.)  92  Fed. 
329.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  76,  77;  Cent.  Dig. 
§§  55,  99,  100. 

s*  Sloan  v.  Lewis,  22  Wall.  150,  22  L.  Ed.  832.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  77;  Cent.  Dig.  §§  55,  101-108. 


106  DISTRICT  COUET — BANKRUPTCY  (Ch.  5 

A  creditor  who  joins  in  the  proceeding  cannot  defeat  the 
proceeding  by  subsequently  withdrawing.55 

Under  the  provisions  of  the  act,  neither  a  voluntary  nor 
involuntary  petition  can  be  dismissed,  even  by  consent  of 
parties,  until  after  notice  to  the  creditors.56 

This  provision,  however,  alludes  only  to  dismissals  of 
petitions  before  a  hearing  on  the  merits.  No  notice  is  re- 
quired when  the  petition  is  dismissed  by  the  court  as  the 
result  of  a  trial.57 

The  only  party  defendant  to  the  petition  in  the  first  in- 
stance is  the  alleged  bankrupt.  If  there  is  a  proceeding 
against  him,  and  he  is  a  member  of  a  partnership,  other 
members  of  the  partnership  cannot  voluntarily  come  in 
and  submit  the  partnership  to  the  proceeding,  as  the  act 
provides  opportunity  for  them  to  avail  of  it  by  filing  sepa- 
rate petitions.58 

The  petition  must  allege  insolvency,  except  in  cases 
where  insolvency  is  not  a  material  issue,  and  it  must  also 
charge  an  act  of  bankruptcy  with  reasonable  certainty. 
This  brings  up  for  discussion  the  question,  what  consti- 
tutes acts  of  bankruptcy?  Here  it  is  important  to  remem- 
ber that  the  acts  of  the  bankrupt  alone  are  being  consid- 
ered, and  those  simply  for  the  purpose  of  deciding  the 
question  whether  he  should  be  adjudicated  a  bankrupt. 
There  are  many  dealings  by  him  which  are  acts  of  bank- 
ruptcy as  far  as  he  is  concerned,  and  violations  of  the 
bankrupt  law,  and  yet  which  are  not  voidable  as  to  the 
grantees  or  beneficiaries  under  them.  The  bankrupt  may 
intend  to  give  a  preference,  for  instance,  and  his  act  in 

SB  in  re  Bedingfield  (D.  C.)  96  Fed.  190.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §§  77,  92. 

56  Section  59g  (U.  S.  Comp.  St.  1901,  p.  3445) ;   In  re  Cronin  (D.  C.) 
98  Fed.  584.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  48,  92;   Cent. 
Dig.  §§  47,  133-136. 

57  Neustadter  v.  Dry  Goods  Co.  (D.  C.)  96  Fed.  830.    See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §§  50,  99;  Cent.  Dig.  §§  136,  146. 

ss  Mahoney  v.  Ward  (D.  C.)  100  Fed.  278.  See  "Bankruptcy,"  Dec. 
Dig.  (Key -No.)  §  88;  Cent.  Dig.  §§  58,  98-112. 


§§  40-41)  ACTS   OF   BANKRUPTCY  107 

giving  it  will  be  an  act  of  bankruptcy;  and  yet  the  grantee, 
if  he  has  not  the  knowledge,  or  means  of  knowledge,  re- 
quired by  the  bankrupt  law,  may  be  enabled  to  sustain  his 
preference.  Hence  at  this  stage  of  the  proceeding,  which 
involves  simply  the  issue  whether  the  defendant  should  be 
adjudicated  a  bankrupt,  the  question  of  the  validity  of  his 
acts  as  to  third  parties  is  not  involved.  Those  questions 
come  up  after  adjudication,  when  proceedings  are  taken  to 
set  them  aside. 


ACTS   OF   BANKRUPTCY— DEFINITION    AND 
ENUMERATION 

40.  Acts  of  bankruptcy  are  such  acts   as,   in  accordance 

with  the  terms  of  the  statute,  render-  him  who 
commits  them  a  subject  for  involuntary  bank- 
ruptcy proceedings. 

These  acts,  as  specified  in  the  third  section  of  the  act,  may 
be  enumerated  as  follows: 

(a)  Transfers  to  hinder,  delay,  and  defraud  creditors. 

(b)  Illegal  preferences. 

(c)  Suffering  preference  by  legal  process. 

(d)  Assignments. 

(e)  Admission  of  insolvency  in  writing. 

SAME— TRANSFERS    TO    HINDER,    DELAY,    AND 
DEFRAUD   CREDITORS 

41.  It  is  an  act  of  bankruptcy  for  a  person  to  convey,  trans- 

fer, conceal,  or  remove,  or  permit  to  be  concealed 
or  removed,  any  part  of  his  property,  with  intent 
to  hinder,  delay,  or  defraud  his  creditors,  or  any 
of  them.  This  is  broader  in  meaning  than  the 
state  statutes  based  on  the  statute  of  Elizabeth. 
Solvency  is  a  good  defense  to  a  petition  filed  un- 
der this  act  of  bankruptcy. 


108  DISTRICT  COUET — BANKRUPTCY  (Ch.  5 

This  subdivision  makes  an  act  of  bankruptcy  any  at- 
tempt to  defraud  creditors  which  would  constitute  a  viola- 
tion of  the  state  statutes  based  upon  the  statutes  of  Eliza- 
beth. However,  it  goes  further  than  this.  At  common 
law,  independent  of  the  bankrupt  act,  a  preference  of  one 
creditor  over  another  by  a  debtor  was  not  a  violation  of 
such  statutes,  if  the  debt  was  an  actual,  bona  fide  debt; 
but,  under  the  bankrupt  act,  even  a  preference  of  one  bona 
fide  creditor  over  another  is  held  to  be  not  only  an  act  of 
bankruptcy,  but  void,  as  intended  to  hinder,  delay,  and 
defraud  creditors;  and  not  only  a  preference  of  one  credi- 
tor over  another,  but  a  debt  of  general  assignment,  secur- 
ing all  creditors  exactly  alike,  is  held  to  be  not  only  an  act 
of  bankruptcy,  but  void,  as  to  the  trustee  in  bankruptcy,  as 
intended  to  hinder,  delay,  and  defraud  creditors;  for  its 
effect  would  be  to  withdraw  the  administration  of  the 
bankrupt's  estate  from  the  bankrupt  court  and  place  it  in 
the  hands  of  a  trustee,  and  this  would  hinder  the  creditors 
from  the  collection  of  their  debts  through  the  court  pri- 
marily designed  for  that  purpose.59 

A  sale  of  property,  however,  is  not  necessarily  fraudu- 
lent, though  the  vendor  is  insolvent.  If  made  in  the  ordi- 
nary course  of  business,  without  circumstances  of  suspi- 
cion, it  would  be  valid  as  to  the  vendee,  and  could  hardly 
be  considered  an  act  of  bankruptcy.  Any  contrary  doc- 
trine would  put  a  clog  upon  the  free  alienation  of  property, 
which  would  be  injurious  in  its  effects  upon  the  business 
community.00  So,  where  a  corporation  issued  bonds  to 

69  WEST  CO.  v.  LEA,  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed. 
1098;  Gutwillig,  In  re  (D.  C.)  90  Fed.  475.  An  assignment,  if  per- 
fected, is  an  act  of  bankruptcy,  though  invalid.  Canner  v.  Webster 
Tapper  Co.,  168  Fed.  519,  93  C.  C.  A.  941;  In  re  Federal  Lumber 
Co.  (D.  C.)  185  Fed.  926.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
58;  Cent.  Dig.  §§  57,  72-79. 

eo  Tiff  any  v.  Lucas,  15  Wall.  410,  21  L.  Ed.  198;  Richardson  v. 
Shaw,  209  U.  S.  365,  28  Sup.  Ct.  512,  52  L.  Ed.  835,  14  Ann.  Cas.  981 ; 
In  re  McLoon  (D.  C.)  162  Fed.  575.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  57;  Cent.  Dig.  §§  57,  66,  69-79. 


§  42)  ACTS   OF   BANKRUPTCY  109 

take  up  its  floated  indebtedness,  and  conveyed  its  property 
in  trust  to  secure  them,  with  the  idea  of  thereby  placing 
itself  in  a  better  position  to  carry  on  its  business,  this 
could  not  be  held  to  be  an  act  of  bankruptcy,  though  the 
corporation  at  the  time  might  have  been  insolvent.61 

This  first  act  of  bankruptcy  does  not  add,  as  several  of 
the  others  do,  the  qualification  that  the  act  must  be  done 
while  insolvent.  However,  paragraph  "c"  of  section  3 
provides  that  it  shall  be  a  complete  defense  to  any  pro- 
ceeding instituted  under  the  first  subdivision  of  the  sec- 
tion to  allege  and  prove  that  the  party  proceeded  against 
was  not  insolvent,  as  defined  in  this  act,  at  the  time  of 
filing  the  petition  against  him.  In  West  Co.  v.  Lea62  the 
Supreme  Court  decided  that  the  subdivision  in  paragraph 
"c"  referred  simply  to  this  provision  relating  to  transfers 
to  hinder,  delay,  and  defraud  creditors,  and  not  to  any  of 
the  others;  hence,  under  this  decision,  solvency  is  a  com- 
plete defense  to  a  petition  alleging  such  a  conveyance  by 
the  debtor  as  is  contemplated  under  this  first  subdivision. 

SAME— ILLEGAL  PREFERENCES 

42.  It  is  an  act  of  bankruptcy  for  a  person  to  transfer, 
while  insolvent,  any  portion  of  his  property  to  one 
or  more  of  his  creditors,  with  intent  to  prefer  such 
creditors  over  his  other  creditors.  In  this  act  of 
bankruptcy  the  intent  of  the  debtor  alone  is  ma- 
terial. 

This  act  is  described  in  section  3  as  consisting  of  hav- 
ing "transferred  while  insolvent  any  portion  of  his  prop- 
erty to  one  or  more  of  his  creditors,  with  intent  to  prefer 
such  creditors  over  his  other  creditors." 

ei  In  re  Union  Pac.  R.  Co.,  Fed.  Cas.  No.  14,376.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  57,  66,  69-79. 

«2  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed.  1098.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  54;  Cent.  Dig.  §§  54,  84,  85. 


110  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

In  considering  this  as  an  act  of  bankruptcy,  independent 
of  the  question  how  far  it  is  voidable,  the  intent  of  the 
debtor  alone  is  material.  If  he  intended  a  preference,  the 
fact  that  the  creditor  was  not  aware  of  such  intent,  or  had 
not  such  reasonable  cause  to  suspect  it  as  to  charge  him 
with  knowledge,  will  not  affect  the  act  as  an  act  of  bank- 
ruptcy, however  good  a  defense  it  may  be  to  an  attempt  to 
set  it  aside  as  to  the  creditor.63  When  a  debtor  transfers 
property  to  cover  a  debt,  and  its  necessary  effect  is  to  give 
the  creditor  a  preference,  the  intent  to  prefer  will  be  in- 
ferred, as  that  is  a  natural  consequence  of  the  act.64  Pref- 
erences of  this  sort  may  be  accomplished  as  well  by  a  pay- 
ment in  money  as  by  a  transfer  of  any  other  kind  of  prop- 
erty.65 

It  is  to  be  noted  that  intent  is  necessary  in  both  the  acts 
of  bankruptcy  so  far  described. 

SAME— SUFFERING  PREFERENCES  BY  LEGAL 
PROCESS 

43.  It  is  an  act  of  bankruptcy  for  a  person  to  suffer  or  per- 
mit, while  insolvent,  any  creditor  to  obtain  a  pref- 
erence through  legal  proceedings,  and  not  at  least 
five  days  before  a  sale  or  final  disposition  of  any 
property  affected  by  such  preference  to  vacate  or 
discharge  such  preference. 

As  the  policy  of  the  bankrupt  law  is  an  equitable  dis- 
tribution of  a  bankrupt's  estate  among  his  creditors,  it  is 

es  in  re  Rome  Planing  Mill  Co.  (D.  C.)  96  Fed.  812.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig.  §§  57,  72-79,  83. 

64  Johnson  v.  Wald,  93  Fed.  640,  35  C.  C.  A.  522;  In  re  Smith  (D. 
C.)  176  Fed.  426.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  58;  Cent. 
Dig.  §§  57,  72-79,  83. 

6o  in  re  Ft.  Wayne  Electric  Corp.,  99  Fed.  400,  39  C.  C.  A.  582. 
But  not  an  innocent  payment  in  the  usual  course  of  business.  In  re 
Morgan  &  Williams  (D.  C.)  184  Fed.  938.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  58;  Cent.  Dig.  §§  57,  72-79,  83. 


§  43)  ACTS   OF  BANKRUPTCY  111 

necessary  to  secure  it  not  only  against  the  acts  of  the 
bankrupt  himself,  but  also  against  the  attempt  of  his  cred- 
itors to  secure  priority  over  each  other.  This  is  the  object 
of  this  section,  and,  being  its  object,  it  is  an  act  of  bank- 
ruptcy, if  such  a  result  is  brought  about  by  the  creditors, 
though  the  bankrupt  himself  is  not  privy  to  their  act,  and 
merely  suffers  them  to  proceed.  Under  this  section  an 
intent  of  the  debtor  is  unnecessary,  which  sharply  distin- 
guishes it  from  the  two  preceding  sections,  and  also  from 
the  corresponding  section  of  the  bankrupt  act  of  1867.  This 
clause  of  the  act  came  under  the  consideration  of  the  Su- 
preme Court  in  Wilson  v.  Nelson.66  There  a  debtor,  long 
before  the  filing  of  a  petition  in  bankruptcy,  and  indeed 
before  the  enactment  of  the  bankrupt  law,  had  given  a 
creditor  an  irrevocable  power  of  attorney  to  confess  judg- 
ment upon  a  promissory  note.  After  the  bankrupt  act 
went  into  effect,  the  creditor  executed  this  power  of  at- 
torney, and  proceedings  were  instituted,  alleging  that  the 
act  of  the  debtor  in  permitting  the  execution  of  this  power 
of  attorney  was  an  act  of  bankruptcy.  The  court  sustained 
this  contention,  although  the  debtor  had  merely  passively 
acquiesced,  and  in  fact  was  powerless  to  do  anything.  The 
opinion  was  based  upon  the  language  of  the  present  act, 
and  distinguished  cases  decided  under  the  old  act,  which 
it  held  were  no  longer  in  point.  Prior  to  this  decision, 
some  decisions  of  inferior  courts  had  held  that  in  the  case 
of  a  power  of  attorney  given  under  similar  circumstances, 
and  afterwards  executed,  the  act  of  the  debtor  in  permit- 
ting it  was  not  an  act  of  bankruptcy,  but  these  cases  must 
now  be  considered  as  overruled. 

Care  must  be  taken,  however,  to  distinguish  this  case 
from  a  procedure  to  foreclose  a  lien  created  before  the 
act,  or  so  long  before  the  filing  of  the  petition  as  not  to 

ee  183  U.  S.  191,  22  Sup.  Ct  74,  46  L.  Ed.  147.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig.  §§  81,  82. 


112  DISTRICT   COURT — BANKRUPTCY  (Ch.  5 

be  subject  to  attack.  In  such  case  the  fact  that  the  lien  is 
foreclosed  afterwards  does  not  make  it  an  act  of  bank- 
ruptcy on  the  part  of  the  debtor.  The  distinction  is  due 
to  the  fact  that  no  lien  arises  at  the  time  of  giving  a  power 
of  attorney  to  confess  judgment,  and  the  mere  giving  of 
that  power  of  attorney  does  not  enable  a  creditor  to  obtain 
a  preference,  as  it  may  never  be  executed,  whereas,  in  pro- 
ceedings to  foreclose  a  lien,  the  lien  is  already  in  existence, 
and  the  obtaining  of  the  preference  would  date  back  to  the 
time  of  executing  the  lien,  and  not,  as  in  the  case  of  a  pow- 
er of  attorney,  to  the  time  of  executing  the  power  of  at- 
torney.67 Under  this  clause,  however,  the  mere  appoint- 
ment of  a  receiver  for  a  corporation  would  not  be  an  act 
of  bankruptcy,  as  no  final  disposition  of  the  property 
would  be  made  by  such  appointment.68  Creditors  who 
wish  to  proceed  under  this  section  do  not  have  to  wait 
until  an  actual  sale,  or  disposition  of  the  property.  If  a 
sale  has  been  advertised,  they  can  proceed  within  five  days 
before  the  advertisement  is  to  be  carried  out.!9  No  actual 
participation  by  the  debtor  is  necessary,  but  mere  passive 
submission  is  an  act  of  bankruptcy  under  this  clause,  if 
the  result  is  that  the  creditor  secures  the  preference.70 

e  7  in  re  Chapman  (D.  C.)  99  Fed.  395;  In  re  Ferguson  (D.  C.)  95 
Fed.  429;  METCALF  BROS.  v.  BARKER,  187  U.  S.  165,  23  Sup.  Ct. 
67,  47  L.  Ed.  122.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  59;  Cent. 
Dig.  §§  81,  82. 

es  in  re  Baker-Ricketson  Co.  (D.  C.)  97  Fed.  489.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig.  §§  81,  82. 

69  In  re  Rome  Planing  Mill  Co.  (D.  C.)  96  Fed.  812.  An  advertise- 
ment of  a  sale  in  attachment  proceedings  to  save  expense  does  not 
come  under  this  provision,  as  it  only  substitutes  money  for  property 
and  does  not  diminish  the  debtor's  estate.  In  re  Crafts-Riordon  Shoe 
Co.  (D.  C.)  185  Fed.  931.  The  title  of  the  trustee  is  transferred  to 
the  proceeds.  Jones  v.  Springer,  226  U.  S.  148,  33  Sup.  Ct.  64,  57  L. 

Ed. .  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig.  §§ 

81,  82. 

TO  in  re  Reichman  (D.  C.)  91  Fed.  624;  In  re  Cliff  e  (D.  C.)  94  Fed. 
354;  In  re  Tupper  (D.  C.)  163  Fed.  766,  772.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig.  §§  81,  82. 


§  44)  ACTS   OF  BANKRUPTCY  113 

The  language  of  this  clause  is  conditioned  upon  the 
debtor  not  having,  at  least  five  days  before  a  sale  or  final 
disposition  of  any  property  affected  by  such  preference, 
vacated  or  discharged  such  a  preference.  The  privilege  of 
vacating  or  discharging  thus  given  to  the  debtor  would 
seem,  however,  to  be  rather  an  empty  one.  If  he  goes  and 
pays  off  the  creditor  and  releases  the  property,  and  is  in- 
solvent when  he  does  it,  that  would  be  an  act  of  bank- 
ruptcy of  itself.  Hence,  if  he  is  actually  insolvent,  about 
the  only  thing  he  can  do  is  to  file  a  petition  in  bankruptcy 
himself;  and  this  procedure  is  hinted  at  in  the  decisions.71 
But  even  that  privilege  cannot  be  exercised  by  some  corpo- 
rations, so  that,  if  such  a  corporation  is  insolvent,  nothing 
remains  but  to  let  matters  take  their  course.  Either  an 
individual  or  a  corporation  can  defend  on  the  ground  of 
solvency,  if  the  facts  sustain  it,  for  in  this  subdivision  in- 
solvency is  a  necessary  requisite. 

SAME— ASSIGNMENTS  AS  AN  ACT  OF  BANK- 
RUPTCY 

44.  It  is  an  act  of  bankruptcy  for  a  person  to  make  a  gen- 
eral assignment  for  the  benefit  of  his  creditors,  or, 
being  insolvent,  to  apply  for  a  receiver  or  trustee 
for  his  property,  or  when,  because  of  insolvency, 
a  receiver  or  trustee  is  put  in  charge  of  his  prop- 
erty under  the  laws  of  a  state,  of  a  territory,  or  of 
the  United  States. 

In  the  act  as  originally  passed,  any  one  committed  an 
act  of  bankruptcy  who  made  a  general  assignment  for  the 
benefit  of  his  creditors.  To  this  the  amendment  of  Febru- 

7i  WILSON  v.  NELSON,  183  U.  S.  191,  22  Sup.  Ct.  74,  46  L.  Ed. 
147 ;  In  re  Moyer  (D.  C.)  93  Fed.  188 ;  In  re  Tupper  (D.  C.)  163  Fed. 
766,  771.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig.  §§ 
81,  82. 

HUGHES  FED.PB.(2o  ED.) — 8 


114  DISTRICT  COURT — BANKRUPTCY  (Ch.  5 

ary  5,  1903,  has  added  the  following  words:  "or  being  in- 
solvent applied  for  a  receiver  or  trustee  for  his  property, 
or  because  of  insolvency,  a  receiver  or  trustee  has  been  put 
in  charge  of  his  property  under  the  laws  of  a  staie,  of  a 
territory,  or  of  the  United  States." 

Under  the  act  of  1867,  the  mere  making  of  a  general 
assignment,  though  without  preferences,  was  an  act  of 
bankruptcy,  as  it  was  evidence  of  an  intent  to  prevent  the 
administration  of  the  debtor's  property  in  the  bankrupt 
court;72  and  the  making  of  a  general  assignment  is  an 
act  of  bankruptcy,  independent  of  any  intent  on  the  part 
of  the  debtor  to  defeat  the  operation  of  the  law,  and  inde- 
pendent of  the  fact  whether  he  is  insolvent  or  not,  for 
neither  intent  nor  insolvency  are  specified  as  essentials  un- 
der this  clause  as  it  stood  in  the  original  draft  of  the  present 
act.73  It  has  even  been  held  that  a  paper  purporting  to 
be  an  assignment  is  an  act  of  bankruptcy,  though,  as  a 
matter  of  fact,  it  is  invalid,  and  though  it  is  a  partnership 
assignment  that  does  not  convey  individual  property.74 

In  Rumsey  &  Sikemier  Co.  v.  Novelty  &  Machine  Mfg. 
Co.75  it  was  held  that,  as  the  act  applies  only  to  general 
assignments,  a  debt  which  reserved  a  balance  to  the  gran- 
tor after  payment  of  creditors,  if  not  in  actual  bad  faith, 
or  with  no  intent  to  evade  the  law,  was  not  a  general  as- 
signment, and  did  not  contravene  the  act.  This  decision 
would  seem  subject  to  serious  question.  If  it  purported 
to  be  a  conveyance  of  all  the  bankrupt's  property  to  secure 


72Boese  v.  King,  108  TJ.  S.  379,  2  Sup.  Ct.  765,  27  L.  Ed.  760; 
WEST  CO.  v.  LEA,  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed.  1098. 
See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  60;  Cent.  Dig.  §  80. 

73  WEST  CO.  v.  LEA,  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed. 
1098.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  60;    Cent.  Dig.  §  80. 

74  in  re  Meyer,  98  Fed.  976,  39  C.  C.  A.  368.     See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  60;  Cent.  Dig.  §  80. 

75  (D.  C.)  99  Fed.  699.    This  was  overruled  in  the  later  case  of  In 
re  Thomlinson  Co.,  154  Fed.  834,  83  C.  C.  A.  550.    See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  60;   Cent.  Dig.  §  80. 


§  44)  ACTS   OF  BANKRUPTCY  115 

all  his  creditors,  it  is  difficult  to  see  how  a  mere  reservation 
of  any  unused  balance  would  prevent  it  from  being  a  gen- 
eral assignment.  However,  creditors  who  prove  their 
claims  before  the  assignee,  and  participate  in  the  benefit  of 
the  general  assignment,  could  not  come  into  court  after- 
wards and  allege  such  assignment  as  an  act  of  bank- 
ruptcy.76 

An  application  of  a  corporation  under  a  state  statute  for 
a  dissolution  and  the  appointment  of  a  receiver  would  not 
be  a  general  assignment  or  an  act  of  bankruptcy,  under  the 
language  of  the  original  act.77 

In  consequence  of  the  decisions  holding  that  the  appoint- 
ment of  a  receiver  was  not  an  act  of  bankruptcy  under  the 
original  act,  the  amendment  was  introduced  which  has 
been  set  out  above.  Clearly,  under  it,  the  appointment  of 
a  receiver,  either  at  the  request  of  or  against  the  wishes 
of  the  alleged  bankrupt,  is  an  act  of  bankruptcy,  if  such 
appointment  is  made  on  the  ground  of  insolvency.  Hence 
insolvency,  while  not  an  essential  under  the  first  part  of 
this  fourth  clause  as  it  now  stands,  is  essential  under  the 
part  added  by  the  amendment.  However,  the  appointment 
of  a  receiver  on  other  grounds  than  insolvency  would  still 
not  be  an  act  of  bankruptcy.78 

76  Simonson  v.  Sinsheimer,  95  Fed.  948,  37  C.  C.  A.  337;    In  re 
Romanow  (D.  C.)  92  Fed.  510;    Moulton  v.  Coburn,  131  Fed.  201,  66 
C.  C.  A.  90.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  76. 

77  In  re  Empire  Metallic  Bedstead  Co.,  98  Fed.  981,  39  C.  C.  A. 
372.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  GO;   Cent.  Dig.  §  80. 

7  s  in  re  Edward  Ellsworth  Co.  (D.  C.)  173  Fed.  699;  In  re  Hud- 
son River  Electric  Co.  (D.  C.)  173  Fed.  934 ;  Id.,  183  Fed.  701,  106 
C.  C.  A.  139,  33  L.  R.  A.  (N.  S.)  454 ;  In  re  Electric  Supply  Co.  (D. 
C.)  175  Fed.  612 ;  In  re  Boston  &  Oaxaca  Mining  Co.  (D.  C.)  181  Fed. 
422.  The  appointment  of  receivers  of  an  insolvent  corporation  at  its 
request  is  an  act  of  bankruptcy,  though  unauthorized  by  law.  Ex- 
ploration Mercantile  Co.  v.  Pacific  Hardware  &  Steel  Co.,  177  Fed. 
825,  101  C.  C.  A.  39.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  60; 
Cent.  Dig.  §  80. 


116  DISTRICT  COURT — BANKRUPTCY  (Ch.  5 

SAME— ADMISSION  OF  INSOLVENCY  IN 
WRITING 

45.  It  is  an  act  of  bankruptcy  for  a  person  to  admit  in 
writing  his  inability  to  pay  his  debts,  and  his 
willingness  to  be  adjudged  a  bankrupt  on  that 
ground. 

This  act  of  bankruptcy  is  thuvs  denned  in  the  act,  "ad- 
mitted in  writing  his  inability  to  pay  his  debts,  and  his 
willingness  to  be  adjudged  a  bankrupt  on  that  ground." 
The  admission  must  be  unqualified,  and  must  be  before 
the  filing  of  the  petition.  For  instance,  a  corporation 
which  passed  a  resolution  authorizing  one  of  its  officers  to 
make  this  admission  in  the  event  of  an  involuntary  petition 
in  bankruptcy  being  filed  against  said  company  did  not 
accomplish  its  purpose,  for,  under  the  language  of  the  ad- 
mission, it  could  not  be  made  until  the  petition  was  filed, 
and,  under  the  language  of  the  bankrupt  act,  a  petition 
could  not  be  filed  until  it  had  made  an  admission  in  writ- 
ing, and  that  admission  had  to  be  set  out  in  the  petition.™ 

It  is  an  interesting  question  what  officers  of  a  corpora- 
tion can  make  an  admission  of  this  sort,  fraught  with  such 
far-reaching  consequences.  Under  ordinary  principles  of 
corporation  law,  a  board  of  directors  has  power  to  do  any- 
thing necessary  in  carrying  on  the  business  of  the  com- 
pany, but  it  has  not  power  to  take  steps  which  might  cause 
a  dissolution  of  the  company.  Hence  it  has  been  held 
that,  under  the  law  of  Massachusetts,  this  admission  can- 
not be  made  by  the  board  of  directors,  and  that  even  a 
subsequent  vote  of  the  stockholders  could  not  date  back 
so  as  to  make  it  valid.80  Undoubtedly  the  stockholders 

TO  In  re  Baker-Ricketson  Co.  (D.  C.)  97  Fed.  489.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  61. 

so  in  re  Bates  Mach.  Co.  (D.  C.)  91  Fed.  625.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  63. 


§  46)  TIME   OF  FILING   PETITION  117 

themselves  could  make  or  authorize  such  an  admission, 
for  they  can  wind  up  the  corporation.  The  question  de- 
pends largely  upon  the  corporation  laws  of  the  different 
states.  In  Re  Marine  Machine  &  Conveyor  Co.81  an  ad- 
mission by  the  president  and  directors  was  held  sufficient, 
though  the  question  of  their  power  to  make  it  did  not  seem 
to  have  received  any  special  attention. 

TIME  OF  FILING  PETITION 

46.  The  petition  must  be  filed  within  four  months  after  the 
commission  of  the  act  of  bankruptcy.  Petitions 
must  be  made  in  duplicate,  and  both  the  original 
and  duplicate  must  be  filed  within  this  period. 

Where  the  act  consists  of  having  made  a  transfer  with 
intent  to  defraud  or  to  give  a  preference,  or  of  having  made 
a  general  assignment,  the  four  months  date  from  the  re- 
cording of  the  paper,  if  it  is  a  paper  that  requires  record.82 
If  the  transfer  or  preference,  however,  is  made  by  such  an 
act  or  writing  that  it  does  not  require  record,  the  four 
months  date  from  the  time  when  the  beneficiary  takes  no- 
torious, exclusive,  or  continuous  possession  of  the  property, 

si  (D.  C.)  91  Fed.  630.  See,  also,  In  re  Rollins  Gold  &  Silver  Min. 
Co.  (D.  C.)  102  Fed.  982.  See,  as  to  powers  of  the  board  of  directors 
and  other  officers,  Cresson  &  Clearfield  Coal  &  Coke  Co.  v.  Stauffer, 
148  Fed.  981,  78  C.  "C.  A.  609;  In  re  Quartz  Gold  Mining  Co.  (D.  C.) 
157  Fed.  243 ;  Van  Emon  v.  Veal,  158  Fed.  1022,  85  C.  C.  A.  547 ;  In 
re  Burbank  Co.  (D.  C.)  168  Fed.  719;  In  re  Southern  Steel  Co.  (D. 
C.)  169  Fed.  702 ;  In  re  American  Guarantee  &  Security  Co.  of  Cali- 
fornia (D.  C.)  192  Fed.  405.  The  admission  is  sufficient  to  author- 
ize an  adjudication,  though  the  corporation  may  not  in  fact  be  in- 
solvent. In  re  Northampton  Portland  Cement  Co.  (D.  C.)  179  Fed. 
796.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  63. 

82  The  necessity  of  record  and  the  question  as  to  who  are  included 
under  the  term  "creditors"  depends  upon  the  provisions  of  the  local 
statute  and  its  construction  by  the  local  courts.  Holt  v.  Crucible 
Steel  Co.,  224  TJ.  S.  262,  32  Sup.  Ct.  414,  56  L.  Ed.  756.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  79. 


118  DISTRICT  COURT — BANKRUPTCY  (Ch.  5 

unless  petitioning  creditors  have  received  actual  notice  of 
such  transfer  or  assignment.  Under  section  59c,  petitions 
must  be  in  duplicate;  and  accordingly  it  has  been  held 
that  both  the  original  and  the  duplicate  must  be  filed  with- 
in the  four  months,  and  that  the  failure  to  file  the  dupli- 
cate is  not  such  an  error  as  can  be  subsequently  corrected 
under  the  eleventh  order  in  bankruptcy.83  The  day  on 
which  the  act  of  bankruptcy  is  committed  is  excluded  in 
the  computation  of  the  time.84  The  four  months  date  from 
the  act  of  bankruptcy,  not  from  the  mere  recording  of  any 
paper  indirectly  connected  with  it.  Hence,  where  an  in- 
solvent corporation  sold  land,  and  used  the  proceeds  to  pay 
some  of  its  creditors,  and  this  use  of  the  proceeds  was  at- 
tacked as  a  preference,  it  was  held  that  the  time  ran  from 
the  date  of  the  payments  to  the  creditors,  not  from  the  date 
of  recording  the  deed  of  sale  of  the  land.88 

s  s  in  re  Stevenson  (D.  C.)  94  Fed.  110;  In  re  Dupree  (D.  C.)  97 
Fed.  28.  But  the  requirement  is  waived  by  defending  on  other 
grounds.  In  re  Plymouth  Cordage  Co.,  135  Fed.  1000,  68  C.  C.  A. 
434.  A  copy  certified  by  the  clerk  and  served  on  the  bankrupt  is  a 
compliance  with  the  statute.  Millan  v.  Exchange  Bank,  183  Fed.  753, 
106  C.  C.  A.  327.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  79. 

s*  Id. 

85  in  re  Mingo  Valley  Creamery  Ass'n  (D.  C.)  100  Fed.  282.  See 
"Bankruptcy"  Dec.  Dig.  (Key-No.)  §  79. 


§  47)  DISTRICT  COURT — BANKRUPTCY  119 

CHAPTER  VI 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued) 

47.  The  Process  on  an  Involuntary  Petition. 

48.  The  Warrant  of  Seizure. 

49.  The  Appointment  of  a  Receiver. 

50.  The  Defense. 

51.  The  Right  to  a  Jury. 

52.  The  Adjudication. 

53.  The  Creditors'  Meeting. 

54.  The  Examination  of  the  Bankrupt. 

THE  PROCESS  ON  AN  INVOLUNTARY  PETITION 

47.  The  process  in  an  involuntary  proceeding  consists  of 
an  order  to  show  cause,  as  a  preliminary,  and 
service  of  a  copy  of  the  petition  and  a  writ  of  sub- 
poena upon  the  defendant.  The  subpoena  is  simi- 
lar to  the  original  equity  subpoena,  and  its  service 
is  like  that  of  the  equity  subpoena,  except  in  cer- 
tain respects  specified  by  the  statute. 
In  case  personal  service  cannot  be  made,  an  order  of  pub- 
lication is  provided  for,  which  is  modeled  upon  the 
order  prescribed  in  suits  to  enforce  equitable 
claims. 

Section  18a  of  the  bankruptcy  act  of  1898  (30  Stat.  551, 
c.  541  [U.  S.  Comp.  St.  1901,  p.  3429])  provides  that,  upon 
the  filing  of  a  petition  for  involuntary  bankruptcy,  service 
thereof,  with  a  writ  of  subpoena,  shall  be  made  upon  the 
person  therein  named  as  defendant  in  the  same  manner 
that  service  of  such  process  is  now  had  upon  the  com- 
mencement of  a  suit  in  equity  in  the  courts  of  the  United 
States,  except  that  it  shall  be  returnable  within  fifteen 
days  unless  the  judge  shall,  for  cause,  fix  a  longer  time. 


120  DISTRICT  COURT — BANKRUPTCY  (Ch.  6 

The  original  act  went  on  to  provide  that,  in  case  per- 
sonal service  cannot  be  made,  then  notice  shall  be  given 
by  publication  in  the  same  manner  and  for  the  same  time 
as  provided  by  law  for  notice  of  publication  in  suits  in 
equity  in  courts  of  the  United  States. 

The  amendment  of  February  5,  1903  (32  Stat.  797,  c.  487 
[U.  S.  Comp.  St.  Supp.  1911,  p.  1491]),  changed  this  last 
clause  by  providing  that  this  notice  of  publication  shall 
be  given  in  the  same  manner  and  for  the  same  time  as  pro- 
vided by  law  for  notice  by  publication  in  suits  to  enforce 
a  legal  or  equitable  lien  in  courts  of  the  United  States,  ex- 
cept that,  unless  the  judge  shall  otherwise  direct,  the  or- 
der shall  be  published  not  more  than  once  a  week  for  two 
consecutive  weeks,  and  the  return  day  shall  be  ten  days 
after  the  last  publication,  unless  the  judge  shall,  for  cause, 
fix  a  longer  time. 

Under  this  provision  the  first  process  on  an  involuntary 
petition  is  an  order  to  show  cause,  providing  also  that  a 
copy  of  the  petition  and  a  writ  of  subpoena  be  served  upon 
the  defendant.  A  form  of  such  an  order  to  show  cause  is 
given  as  form  4  x  of  those  prescribed  by  the  Supreme  Court 
of  the  United  States,  and  the  subpoena  as  No.  5  2  of  the 
same  forms.  This  subpoena  is  not  in  the  exact  form  of  the 
original  equity  subpoena,  and  the  act  does  not  require  it  to 
be,  but  merely  requires  that  its  service  shall  be  like  that 
of  the  equity  subpoena,  except  in  the  particulars  named.3 
This  subpoena  must  be  issued,  and  cannot  be  waived  by  the 
bankrupt.  He  can  accept  service  on  it,  but  he  cannot  stop 
its  issue.  This  is  for  the  reason  that  creditors  also  can 
contest  an  involuntary  petition,  and  the  issuance  of  the 

1 172  U.  S.  682,  18  Sup.  Ct.  xx,  43  L.  Ed.  1209. 

2  172  U.  S.  683,  18  Sup.  Ct.  xx,  43  L.  Ed.  1209. 

s  A  service  on  an  adult  member  of  the  bankrupt's  family  in  case 
of  his  absence  is  a  personal  service  in  the  sense  of  and  under  the 
provisions  of  equity  rule  13  (29  Sup.  Ct.  xxvi).  In  re  Norton  (D.  C.) 
148  Fed.  301.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  86. 


§  47)        THE   PROCESS  ON   AN  INVOLUNTABY  PETITION  121 

subpoena  is  necessary  in  order  to  fix  a  return  day  within 
which  creditors  can  contest.*  In  case  the  subprena  is  not 
served,  the  court  can  order  an  alias.5 

The  Order  of  Publication 

In  case  personal  service  cannot  be  made,  an  order  of 
publication  can  be  had  as  prescribed  by  the  act.  This  or- 
der of  publication  is  modeled  upon  the  order  prescribed  in 
suits  to  enforce  equitable  liens.  Section  738  of  the  Re- 
vised Statutes  first  provided  for  service  by  publication  in 
such  cases,  but  its  provisions  were  enlarged  and  practically 
superseded  by  the  act  of  March  3,  1875. 6  It  provides,  in 
substance,  that,  when  personal  service  cannot  be  made,  "it 
shall  be  lawful  for  the  court  to  make  an  order  directing 
such  absent  defendant,  or  defendants,  to  appear,  plead,  an- 
swer or  demur,  by  a  day  certain  to  be  designated."  No 
form  of  an  order  of  publication  is  given  among  those  pre- 
scribed by  the  Supreme  Court.  Such  an  order  would  be 
a  simple  one,  and  need  only  follow  the  statute.  The  fol- 
lowing is  suggested  as  a  form  for  the  purpose: 

"It  appearing  that  personal  service  cannot  be  made  upon 
the  defendant  herein,  it  is  ordered  that  said  defendant  do 
appear,  plead,  answer,  or  demur  to  the  petition  within  ten 

days  from  the  last  publication  hereof,  at ,  in 

the  District  of  ;  and  it  is  fur- 
ther ordered  that  this  order  be  published  in  the , 

a  newspaper  published  in  the ,  of , 

in  ,  District  of ,  where  this  suit 

is  pending,  on  the  day  of  and 

the day  of " 

*  In  re  L.  Humbert  Co.  (D.  C.)  100  Fed.  439.  But  the  failure  to 
Issue  the  subprena  on  account  of  such  waiver  does  not  affect  the  va- 
lidity of  the  adjudication  as  to  any  except  creditors  who  did  not  ac- 
quiesce in  it  or  who  desire  to  make  defense  to  the  petition.  In  re 
Western  Inv.  Co.  (D.  C.)  170  Fed.  677.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  87. 

s  Gleason  v.  Smith,  145  Fed.  895,  76  C.  C.  A.  427.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  86. 

«  TJ.  S.  Comp.  St  1901,  p.  513,  now  section  57  of  the  Judicial  Code. 


122  DISTBICT  COURT — BANKRUPTCY  (Ch.  6 

THE  WARRANT  OF  SEIZURE 

48.  If,  through  danger  of  dissipation  of  the  property,  a  ne- 
cessity appears  therefor,  it  is  provided  that  an 
order  may  issue  for  the  seizure  of  the  property  on 
behalf  of  the  court,  on  satisfactory  affidavits  hav- 
ing been  given,  with  bond. 

The  petitioning  creditors  may  simply  issue  and  serve 
the  notice  above,  without  any  interference  with  the  prop- 
erty of  the  defendant  bankrupt.  If,  however,  they  believe 
that  there  is  danger  of  its  dissipation,  they  are  permitted, 
by  section  69a  of  the  act,  on  satisfactory  proof  by  affidavit 
that  the  bankrupt  has  neglected,  or  is  neglecting,  or  is 
about  to  so  neglect  his  property  that  it  has  thereby  de- 
teriorated, or  is  thereby  deteriorating,  or  is  about  thereby 
to  deteriorate  in  value,  to  apply  to  the  judge  for  a  warrant 
to  the  marshal  to  seize  and  hold  it  subject  to  further  or- 
ders, and  the  judge  is  authorized  to  issue  such  a  warrant. 
In  such  case  a  bond  must  be  given  to  indemnify  the  bank- 
rupt for  any  damages  inflicted.  This  provision  evidently 
contemplates  such  a  procedure  after  the  filing  of  the  peti- 
tion, and  requires  at  least  a  prima  facie  case  to  be  made 
by  affidavit.  The  bond  prescribed  by  it  and  by  section  3e 
of  the  act  is  only  in  case  it  is  desired  before  adjudication 
to  protect  the  property,  as  is  evident  from  the  language 
of  these  two  sections.  After  adjudication  the  court  has 
constructive  custody  of  the  property,  and  in  such  case  it 
can  proceed  by  summary  process  to  take  charge  of  the 
property,  without  requiring  a  bond.7 

This  warrant  to  the  marshal  authorizes  the  seizure  not 
only  of  property  in  the  hands  of  the  bankrupt  himself,  but 

7  BRYAN  v.  BERNHEIMER,  181  U.  S.  188,  195,  21  Sup.  Ct.  557, 
45  L.  Ed.  814.  See  "Bankruptcy,"  Deo.  Dig.  (Key-No.)  §§  109,  288. 


§  48)  THE  WARRANT   OF  SEIZURE  123  ' 

also  of  property  claimed  to  be  his  that  may  be  found  in 
other  hands.8 

This  fact,  however,  should  not  be  allowed  to  confuse  the 
procedure  under  the  involuntary  petition  with  the  sum- 
mary procedure  to  gain  possession  of  the  property.  The 
only  proper  issue  in  the  involuntary  petition  itself  is 
whether  the  bankrupt  has  committed  an  act  of  bankruptcy. 
That  is  the  only  issue  which  the  law  contemplates  as  being 
tried  upon  that  petition,  and  it  would  be  bad  practice  to 
combine  in  the  same  petition  a  proceeding  against  third 
parties.  That  should  be  raised  by  an  additional  petition  to 
the  court,  or  rule  to  show  cause,  so  as  to  keep  the  two  is- 
sues entirely  separate.9 

Under  such  a  warrant  the  marshal  may  be  directed  to 
take  charge  of  property  in  the  hands  of  an  assignee  under 
a  general  assignment,  as  the  bankruptcy  act  supersedes 
proceedings  of  this  sort  in  state  courts  under  state  in- 
solvent laws.10 

The  Supreme  Court  has  held  that  where  there  has  been 
an  adjudication  in  bankruptcy,  but  a  trustee  has  not  been 
appointed,  the  bankrupt  court  could  retake  the  property  by 
summary  process,  on  petition,  out  of  the  hands  of  parties 
who  had  replevied  the  property  in  the  bankrupt's  posses- 
sion after  the  adjudication.  The  court,  however,  bases  this 
right  rather  upon  subdivision  15  of  section  2,  allowing  the 
courts  to  make  such  orders,  issue  such  process,  and  enter 
such  judgments  in  addition  to  those  specifically  provided 
for  as  may  be  necessary  for  the  enforcement  of  the  provi- 
sions of  this  act,  and  upon  clause  3  of  bankruptcy  ordeJ* 


s  BRYAN  v.  BERNHEIMER,  181  U.  S.  188,  195,  21  Sup.  Ct.  557, 
45  L.  Ed.  814.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  116. 

» In  re  Kelly  (D.  C.)  91  Fed.  504.  See  "Bankruptcy,"  Dec.  Dig 
(Key-No.)  §  116. 

10  In  re  Sievers  (D.  C.)  91  Fed.  366;  Davis  v.  Bohle,  92  Fed.  325, 
34  C.  C.  A.  372 ;  Bryan  v.  Bernheimer,  181  U.  S.  188,  21  Sup.  Ct.  557, 
45  L.  Ed.  814.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  116. 


124  DISTRICT   COURT — BANKRUPTCY  (Ch.  6 

12,11  than  upon  the  clause  authorizing  the  order  of  sei- 
zure.12 

This  warrant  can  also  be  used  to  compel  the  agent  of  the 
bankrupt,  who  has  bankrupt  money  in  his  possession  and 
asserts  no  adverse  claim,  to  deliver  the  money  to  a  proper 
custodian.  In  such  case  a  mere  refusal  to  surrender  the 
money  does  not  constitute  an  adverse  claim,  and  the  party 
holding  it  can  be  proceeded  against  by  a  rule  to  show 
cause.13 

This  principle,  however,  does  not  interfere  with  the  gen- 
eral principle  of  comity  of  courts.  If  a  state  court  has  pos- 
session of  bankrupt's  property  to  enforce  a  lien  created  not 
against  the  provisions  of  the  bankrupt  act,  and  is  proceed- 
ing to  enforce  that  lien,  the  bankrupt  court  will  not  dispos- 
sess it  merely  because  the  final  judgment  enforcing  the 
lien  may  come  within  the  four  months  named  in  section  67 
of  the  bankrupt  act.1* 


THE  APPOINTMENT  OF  A  RECEIVER 

49.  Further  provision  is  made  for  the  protection  of  the 
bankrupt  estate  in  the  allowance  of  a  receiver  for 
this  purpose  when  necessity  therefor  is  shown. 
But  this  step  is  by  no  means  a  matter  of  course, 
and  the  exercise  of  the  power  should  be  carefully 
guarded. 

11 172  U.  S.  657,  18  Sup.  Ct  vi,  43  L.  Ed.  1190. 

12  White  v.  Schloerb,  178  U.  S.  542,  20  Sup.  Ct.  1007,  44  L.  Ed. 
1183.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  211. 

is  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269,  46  L.  Ed.  405. 
As  to  the  issue  of  summary  process,  see  In  re  Brodbine,  93  Fed.  643 ; 
Mound  Mines  Co.  v.  Hawthorne,  173  Fed.  882,  97  C.  C.  A.  394.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  116,  211. 

nMETCALF  BROS.  v.  BARKER,  187  U.  S.  165,  23  Sup.  Ct.  67,  47 
L.  Ed.  122 ;  Pickens  v.  Roy,  187  U.  S.  177,  23  Sup.  Ct.  78,  47  L.  Ed. 
128.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §§  156,  211. 


§  49)  THE   APPOINTMENT   OP  A   RECEIVER  125 

Section  2,  subd.  3,  of  the  act,  allows  the  courts  to  appoint 
receivers,  or  the  marshals,  upon  the  application  of  the 
parties  in  interest,  in  case  the  courts  shall  find  it  absolutely 
necessary  for  the  preservation  of  estates,  to  take  charge  of 
the  property  of  bankrupts  after  the  filing  of  a  petition,  and 
until  it  is  dismissed  or  the  trustee  is  qualified.  The  cau- 
tious language  of  this  clause  shows  that  such  a  receiver  is 
by  no  means  a  matter  of  course,  and  that  the  exercise  of 
this  power  should  be  carefully  guarded.15  The  receiver 
is  intended  mainly  as  a  curator  or  temporary  custodian  of 
the  property. 

The  act  of  1867,  though  it  did  not  contain  any  express 
provision  allowing  the  appointment  of  a  receiver,  was  con- 
strued as  authorizing  their  appointment  in  cases  where 
they  were  necessary,  though  the  courts  held  them  to  be 
mere  receivers  to  hold  with  limited  powers.18  Nor  would 
they  be  appointed  unless  it  appeared  that  the  probabilities 
of  the  case  were  in  favor  of  the  complainant.17 

Under  the  present  act,  the  decisions  have  given  them 
more  extended  powers  than  that  of  mere  custodians.  They 
may  be  appointed  not  only  for  the  purpose  of  holding  the 
property  of  the  bankrupt,  but  of  stopping  the  dissipation 
of  the  property  by  a  grantee  alleged  to  hold  it  illegally,  and 
for  that  purpose  may  not  only  hold  the  property  that  they 
get  possession  of  without  suit,  but  may  proceed  in  the 
courts  to  protect  property  alleged  to  belong  to  the  bank- 
rupt. This  was  expressly  decided  as  to  the  powers  of  a  re- 
ceiver in  Re  Fixen,18  and  would  seem  to  follow  necessari- 

16  T.  S.  Faulk  &  Co.  v.  Steiner,  Lobman  &  Frank,  165  Fed.  861,  91 
C.  C.  A.  547 ;  In  re  Standard  Cordage  Co.  (D.  C.)  184  Fed.  156.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  114. 

IB  Lansing  v.  Manton,  Fed.  Cas.  No.  8,077.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  114;  Cent.  Dig.  §§  164-166. 

IT  Wilkinson  v.  Dobbie,  Fed.  Cas.  No.  17,670.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  114;  Cent.  Dig.  §§  164-166. 

is  (D.  C.)  96  Fed.  748.  This  decision  is  questioned  in  Guaranty 
Title  &  Trust  Co.  v.  Pearlman  (D.  C.)  144  Fed.  550,  but  tbe  better 


126  DISTRICT   COURT — BANKRUPTCY  (Ch.  6 

ly  from  the  language  of  the  court  in  Bryan  v.  Bernheimer.19 
The  latter  case  was  a  proceeding  by  the  marshal,  but  the 
principle  is  the  same. 

The  decisions  conflict  on  the  question  whether  a  receiver 
can  sue  outside  the  district  of  his  appointment.  Some  hold 
that  he  cannot,  but  may  apply  for  temporary  relief  in  an- 
other district  till  the  appointment  of  a  trustee.20 
•  But  the  better  view  is  that  a  bankrupt  proceeding  is  not 
bounded  by  district  or  state  lines,  and  that  its  receiver  is  a 
statutory  receiver  and  may  sue  anywhere.21 

He  may  take  property,  though  in  charge  of  a  state  in- 
solvent court.22 

And  if  the  property  is  of  such  a  nature  as  to  render  it 
necessary,  he  may  sell  it.23 

THE  DEFENSE 

50.  The  defense  is  set  up  by  the  bankrupt  or  by  a  creditor 
by  means  of  a  demurrer,  plea,  or  answer;  the 
questions  generally  raised  being  that  of  the  juris- 
diction, or  whether  there  can  be  an  adjudication  in 
bankruptcy;  the  creditors  being  allowed  to  make 
only  such  defenses  as  could  be  set  up  by  the  bank- 
rupt. 

opinion  is  in  accord  with  it.  See  In  re  Dempster,  172  Fed.  353,  97 
C.  C.  A.  51.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  114,  115;  Cent. 
Dig.  §§  164-166. 

i»  181  U.  S.  188,  21  Sup.  Ct.  557,  45  L.  Ed.  814.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  114,  115;  Cent.  Dig.  §§  164-166. 

20  In  re  Schrom  (D.  C.)  97  Fed.  760;  In  re  Dunseath  &  Son  Co. 
(D.  C.)  168  Fed.  973.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  115; 
Cent.  Dig.  §  165. 

21  In  re  Dempster,  172  Fed.  353,  97  C.  C.  A.  51.     See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  115;   Cent.  Dig.  §  ^65. 

22  in  re  John  A.  Etheridge  Furniture  Co.  (D.  C.)  92  Fed.  329.    See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  115;   Cent.  Dig.  §  165. 

23  in  re  Becker  (D.  C.)  98  Fed.  407;    In  re  Desrochers  (D.  C.)  183 
Fed.  991.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  115;   Cent.  Dig. 
§165. 


§  50)  THE   DEFENSE  127 

Section  18b  of  the  bankrupt  act  provides  that  the  bank- 
rupt or  any  creditor  may  appear  and  plead  to  the  petition 
within  ten  days  after  the  return  day,  or  within  such  further 
time  as  the  court  may  allow.  The  amendment  of  Febru- 
ary 5,  1903,  has  reduced  this  ten  days  to  five  days.  It  is 
apparent,  therefore,  that  the  defense  may  be  made  either 
by  the  bankrupt  himself  or  by  a  creditor;  and  for  this  rea- 
son, as  stated  above,  a  subpoena  must  issue  so  as  to  fix  the 
time  within  which  the  creditor  can  appear.24 

The  fact,  however,  that  a  creditor  may  also  defend,  does 
not  give  him  the  right  to  raise  any  issue  that  the  bankrupt 
could  not  raise.  On  the  original  petition  the  validity  of 
transfers,  as  far  as  the  creditor  is  concerned,  is  not  in- 
volved. When  he  defends  he  simply  stands  in  the  shoes  of 
the  bankrupt,  and  sets  up  such  defense  as  the  bankrupt 
alone  could  set  up.25  Assuming  that  the  jurisdictional 
facts  are  all  made  out,  practically  the  only  issue  that  the 
bankrupt  or  a  creditor  can  raise  on  the  petition  itself  is 
whether  an  act  of  bankruptcy  has  been  committed.  This 
is  clear  from  the  language  of  many  clauses  in  the  act.  For 
instance,  section  18d  speaks  of  the  bankrupt  or  any  of  his 
creditors  appearing  within  the  time  limited  and  controvert- 
ing "the  facts  alleged  in  the  petition."  Section  59b  pro- 
vides that  the  prayer  of  the  petition  is  "to  have  him  ad- 
judged a  bankrupt,"  and  section  59f  adds  a  provision  that 
creditors  other  than  the  original  petitioners  may  "be  "heard 
in  opposition  to  the  prayer  of  the  petition";  thus  showing 
that,  when  creditors  appear,  they  can  only  resist  the  ad- 
judication in  bankruptcy,  and  cannot  raise  questions  as  to 
the  validity  of  conveyances  to  them,  or  other  questions 
personal  to  them.  There  are  other  means  provided  for 
raising  these  questions. 

2*  In  re  L.  Humbert  Co.  (D.  C.)  100  Fed.  439.  See  "Bankruptcy" 
Dec.  Dig.  (Key-No.)  §§  86,  87;  Cent.  Dig.  §§  130-155. 

25  Sinsheimer  v.  Simonson,  107  Fed.  898,  47  C.  C.  A.  51;  Louis- 
ville Trust  Co.  v.  Comingor,  184  U.  S.  18,  22  Sup.  Ct.  293,  46  L.  Ed. 
413.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  89. 


128  DISTRICT   COURT — BANKRUPTCY  (Ch.  6 

As  to  the  form  of  the  defense,  the  provision  that  the 
bankrupt  or  any  creditor  may  appear  and  plead  is  not  to  be 
construed  literally,  as  meaning  that  the  form  of  the  de- 
fense must  be  a  plea.  Section  19a  provides  that  a  person 
against  whom  an  involuntary  petition  has  been  filed  shall 
be  entitled  to  a  jury  trial  on  filing  a  written  application 
therefor  "at  or  before  the  time  within  which  an  answer 
may  be  filed."  Section  59f  provides  that  creditors  other 
than  original  petitioners  may  at  any  time  enter 'their  ap- 
pearance and  join  in  the  petition,  "or  file  an  answer  and 
be  heard  in  opposition  to  the  prayer  of  the  petition."  It  is 
clear,  therefore,  that  the  word  "plead"  is  merely  equivalent 
to  "making  defense,"  and  that  the  form  of  defense  may  be 
according  to  the  ordinary  rules  of  pleading;  that  is,  by 
plea,  demurrer,  or  answer. 

Form  6  of  those  prescribed  by  the  Supreme  Court 2<J  can 
be  followed  in  most  cases,  and  is  sufficient,  but  this  does 
not  prevent  a  more  elaborate  defense  and  a  setting  up  of 
other  matters.27  In  fact,  this  form  could  not  possibly  an- 
swer for  many  defenses  that  might  be  made,  as,  for  in- 
stance, the  question  whether  the  requisite  number  of  cred- 
itors have  joined,  and  whether  their  debts  aggregate  the 
right  amount. 

THE  RIGHT  TO  A  JURY 

51.  The  bankrupt  is  given  the  right  to  a  jury  upon  the 
question  of  his  insolvency  and  the  question  wheth- 
er he  has  committed  an  act  of  bankruptcy,  pro- 
vided he  files  a  written  application  therefor  at  or 
before  the  time  within  which  an  answer  may  be 
filed. 

*e  172  TL  S.  684,  18  Sup.  Ct  xxi,  43  L.  Ed.  1209. 

27  Mather  v.  Coe  (D.  C.)  92  Fed.  333;  In  re  Paige  (D.  C.)  99  Fed. 
538.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  89;  Cent.  Dig.  §§  120- 
122. 


§  51)  THE   EIGHT  TO   A  JURY  129 

This  means  a  jury  trial  according  to  the  course  of  the 
common  law,  not  a  mere  issue  out  of  chancery,  and  hence 
proceedings  on  a  trial  are  reviewable  only  by  writ  of  error 
and  on  bills  of  exceptions,  where  bills  of  exceptions  are 
usually  necessary.28 

Ordinarily  the  burden  of  proof  is  upon  the  creditors  to 
make  out  the  facts  charged  in  the  petition.29  Section  3, 
"c"  and  "d,"  however,  provides  that  the  burden  of  proving 
solvency  shall  be  upon  the  bankrupt  when  that  is  set  up  as 
a  defense  to  the  charge  that  the  bankrupt  has  attempted 
to  hinder,  delay,  or  defraud  his  creditors,  or  when  he  fails 
to  appear  with  his  books,  papers,  and  accounts,  and  submit 
to  an  examination,  and  give  testimony  as  to  all  matters 
tending  to  establish  solvency  or  insolvency,  on  a  charge  of 
making  an  illegal  preference,  or  suffering  or  permitting 
one. 

As  the  trial  is  according  to  the  course  of  the  common 
law,  this  means  that  the  evidence  will  be  taken  before  the 
jury  in  open  court,  except  in  cases  where  it  can  be  taken 
by  deposition  under  the  present  rules  of  common-law  prac- 
tice in  the  federal  courts. 

The  bankrupt  is  entitled  to  a  jury  trial  only  on  the  issue 
of  insolvency  and  the  commission  of  an  act  of  bankruptcy. 
The  submission  of  any  other  questions  to  a  jury  is  discre- 
tionary with  the  court.30 


28  ELLIOTT  v.  TOEPPNER,  187  U.  S.  327,  23  Sup.  Ct  133,  47  L. 
Ed.  200.  But  this  is  not  true  as  to  questions  submitted  to  a  jury 
under  the  general  powers  of  the  court,  and  not  under  the  provisions 
of  the  bankrupt  act.  The  verdict  in  such  case  is  only  advisory. 
In  re  Neasmith,  147  Fed.  160,  77  C.  C.  A.  402.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  93;  Cent.  Dig.  §  1^0. 

2»  In  re  Rome  Planing  Mill  Co.  (D.  C.)  96  Fed.  812;  In  re  Taylor, 
102  Fed.  728,  42  C.  C.  A.  .1.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.) 
§  91;  Cent.  Dig.  §§  131-139. 

so  Carpenter  v.  Cudd,  174  Fed.  603,  98  C.  C.  A.  449,  20  Ann.  Cas. 
977 ;  Stephens  v.  Merchants'  Nat  Bank  of  Aurora,  111.,  154  Fed.  341, 
83  C.  C.  A.  119.  See  "Bankruptcy,"  Deo.  Dig.  (Key-No.)  §  93;  Cent. 
Dig.  §  140. 

HUGHES  FED.PB.(2o  ED.) — 9 


130  DISTRICT  COUET — BANKRUPTCY  (Ch.  6 

THE  ADJUDICATION 

52.  The  next  step  in  the  progress  of  a  bankruptcy  case,  if 
the  issue  raised  on  the  petition  is  decided  against 
the  bankrupt,  is  the  adjudication. 

in  case  of  a  voluntary  petition  this  is  a  matter  of 
course.31  In  case  of  an  involuntary  petition  it  is  a  matter 
of  course  if  the  issues  are  decided  against  the  bankrupt, 
and  it  is  also  a  matter  of  course  if  the  bankrupt  makes  no 
defense.32  If  the  judge  is  present,  the  adjudication  is  made 
by  him.  If  he  is  absent  from  the  district  or  the  division 
of  the  district  in  which  the  petition  is  filed,  the  clerk  refers 
the  case  to  the  referee,  and  the  referee  on  such  reference 
can  make  the  adjudication.33  The  order  of  reference, 
therefore,  when  made  by  the  clerk,  is  made  before  adjudi- 
cation, and  for  the  purpose  of  enabling  the  referee  to  make 
the  adjudication.  When  made  by  the  judge,  it  is  after  ad- 
judication, and  for  the  purpose  of  investing  the  referee 
with  the  general  supervision  of  the  case  in  its  details, 
which  the  bankruptcy  act  contemplates.  The  things  re- 
quired to  be  stated  in  the  order  are  set  out  in  bankruptcy 
order  12,34  and  its  form  constitutes  No.  14 85  and  No. 
15  36  of  the  forms  prescribed  by  the  Supreme  Court. 

siBankr.  Act,  §  18g;  HANOVER  NAT.  BANK  v.  MOYSES,  186 
U.  S.  181,  22  Sup.  Ct.  857,  46  L.  Ed.  1113.  See  "Bankruptcy"  Dec. 
Dig.  (Key-No.)  §  51. 

32  Bankr.  Act,  §  18e. 

33  Bankr.  Act,  §§  18e-g,  38a  (1). 

S*  172  U.  S.  657,  18  Sup.  Ct.  vi,  43  L.  EdL  1190. 
«B  172  U.  S.  690,  18  Sup.  Ct.  xxv,  43  L.  Ed. -1212. 
se  172  U.  S.  690,  18  Sup.  Ct.  xxv,  43  L.  Ed.  1212. 


53)  THE  CREDITORS'  MEETING  131 


THE  CREDITORS'  MEETING 

53.  The  first  important  step  after  the  adjudication  is  the 
meeting  of  creditors.  The  thirty-ninth  section  of 
the  act  requires  the  referee  to  give  the  notice  of 
such  meeting,  and  the  fifty-eighth  section  requires 
at  least  ten  days'  notice  by  mail,  and  also  by  pub- 
lication. The  proceedings  at  a  creditors'  meeting 
are  prescribed  by  the  fifty-fifth  section  of  the  act. 
The  judge  or  referee  presides,  and  the  important 
business  before  the  meeting  is  the  allowance  or 
disallowance  of  claims  of  creditors,  the  examina- 
tion of  the  bankrupt,  and  the  election  of  a  trustee. 

Proof  of  Claims 

The  proof  and  allowance  of  claims  are  regulated  by  the 
fifty-seventh  section  of  the  act,  which  has  been  amplified 
by  bankruptcy  order  21. 87  The  proof  is  under  oath ;  must 
specify  the  claim,  the  consideration,  the  payments,  the  se- 
curities held  therefor,  if  any,  and  that  the  same  is  justly 
owing.  Creditors  are  defined  in  the  first  section  of  the 
act  as  including  any  one  who  owns  a  demand  or  claim 
provable  in  bankruptcy,  and  may  include  a  duly  authorized 
agent,  attorney,  or  proxy.  Hence  only  those  creditors 
whose  claims  are  provable  in  bankruptcy  are  included. 
The  claims  which  are  provable  are  set  out  in  the  sixty- 
third  section  of  the  act.  The  bankrupt  himself,  as  fidu- 
ciary, can  prove  a  claim  against  his  estate.38 

Under  the  present  act,  secured  creditors  and  those  who 
have  priority  can  prove  their  claims  and  participate  in  the 
meeting,  but  only  for  such  part  of  their  debt  as  is  not  cov- 

37  172  TJ.  S.  660,  18  Sup.  Ct.  vli,  43  L.  Ed.  1192. 
as  Warner  v.  Spooner  (C.  C.)  3  Fed.  890.    See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  308;   Cent.  Dig.  §  490. 


132  .      DISTRICT   COUBT — BANKRUPTCY  (Ch.  6 

ered  by  their  securities.  And  "secured  creditors,"  in  this 
sense,  mean  creditors  secured  by  the  bankrupt,  not  cred- 
itors secured  by  claims  against  other  parties.  For  instance, 
where  a  creditor  had  a  judgment  against  the  bankrupt  and 
another,  and  levied  on  the  property  of  the  other  as  well,  he 
could  still  prove  his  claim  against  the  bankrupt.39  And 
so  a  partner  who  has  bought  up  judgments  against  the  firm 
can  prove  against  the  estate  of  an  individual  partner, 
though  not  in  such  a  manner  as  to  come  into  competition 
with  partnership  debts  on  which  he  himself  would  be  re- 
sponsible.40 

Under  section  57g  of  the  act  as  first  passed,  the  claims 
of  creditors  who  have  received  preferences  could  not  be 
allowed  unless  such  creditors  surrendered  their  prefer- 
ences. It  will  appear  hereafter,  in  discussing  the  question 
what  preferences  are  voidable,  that  a  transfer  or  other 
method  of  preference  adopted  by  the  bankrupt  may  be  a 
preference  as  to  him,  and  yet  may  be  valid  as  to  the  party 
preferred,  if  the  latter  did  not  have  reasonable  cause  to 
believe  that  it  was  intended  as  a  preference.  Hence  care 
must  be  taken,  in  this  connection,  to  distinguish  between 
preferences  voidable  even  as  to  the  creditor,  and  prefer- 
ences valid  as  to  him,  and  yet  against  the  bankrupt  law. 
The  idea  of  the  bankrupt  law  is  equality  of  distribution  of 
the  assets  among  the  creditors,  as  far  as  it  is  possible  to 
bring  about  that  equality  without  interfering  with  freedom 
of  alienation  in  ordinary  business  transactions.  Hence 
this  provision  of  the  bankrupt  law  was  intended  to  put  the 
creditor  to  his  election.  He  had  to  choose  between  holding 
on  to  his  preference,  or  giving  up  his  hope  of  dividends 

89  in  re  Headly  (D.  C.)  97  Fed.  765;  Board  of  Com'rs  of  Shawnee 
County,  Kan.,  v.  Hurley,  169  Fed,  92,  94  C.  C.  A.  362.  See  '-Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  810;  Cent.  Dig.  §§  501-507. 

40  in  re  Carmichael  (D.  C.)  96  Fed.  594.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  309;  Cent.  Dig.  §§  555-564. 


§  53)  THE  CREDITORS'  MEETING  133 

from  the  bankrupt's  estate.  He  could  not  claim  his  prefer- 
ence, and  still  insist  on  his  dividend.  Hence,  under  the 
act,  as  first  passed,  even  a  creditor  whose  preference  could 
not  be  set  aside  had  to  surrender  it  before  he  could  partici- 
pate in  the  benefits  of  the  act.41  And  Judge  Lowell  held 
that  even  a  preference  which  could  not  be  set  aside  for  the 
reason  that  it  had  been  made  for  more  than  four  months 
had  to  be  surrendered  before  the  creditor  could  prove  his 
claim.42  In  other  words,  under  the  original  act,  if  the  re- 
sult of  a  payment  or  transfer  was  a  preference,  that  prefer- 
ence had  to  be  surrendered  before  the  creditor  could  claim 
under  the  bankruptcy  proceeding.  However,  the  amend- 
ment of  February  5,  1903,  changed  section  57g  of  the  orig- 
inal act  so  as  to  provide  that  the  claims  of  creditors  who 
have  received  preferences  voidable  under  section  60,  subd. 
"b,"  or  to  whom  conveyances,  transfers,  assignments  or  in- 
cumbrances,  void  or  voidable  under  section  67,  subd.  "e," 
have  been  made  or  given,  shall  not  be  allowed,  unless  such 
creditors  shall  surrender  such  preference,  conveyances, 
transfers,  assignments,  or  incumbrances.  This  amendment 
was  evidently  intended  to  change  these  decisions,  and  to 
allow  creditors  who  had  received  a  preference  innocently 
to  still  hold  on  to  their  preference  and  prove  their  claim. 
For  it  must  be  remembered  that  the  receipt  of  a  preference 
is  not  considered  as  an  actual  fraud.43  Here,  too,  the  pref- 
erence contemplated  is  a  preference  by  the  bankrupt.  A 

41  In  re  Fixen,  102  Fed.  295,  42  C.  C.  A.  354,  50  L.  R.  A.  605 ;  Pirie 
v.  Trust  Co.,  182  U.  S.  438,  21  Sup.  Ct.  906,  45  L.  Ed.  1171.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  311;   Cent.  Dig.  §§  491-500. 

42  in  re  Jones  (D.  C.)  110  Fed.  736.     But  compare  In  re  Chaplin, 
115  Fed.  162,   171.     See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)   §  311; 
Cent.  Dig.  §§  497-500. 

*3  Streeter  v.  Jefferson  County  Nat  Bank,  147  U.  S.  36,  13  Sup. 
Ct.  236,  37  L.  Ed.  68;  Keppel  v.  Tiffin  Saving  Bank,  197  U.  S.  356, 
25  Sup.  Ct.  443,  49  L.  Ed.  790;  Page  v.  Rogers,  211  U.  S.  575,  29  Sup. 
Ct.  1^9,  53  L.  Ed.  332.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
311;  Cent.  Dig.  §§  497-500. 


134  DISTRICT   COUBT — BANKRUPTCY  (Ch.  6 

payment  to  the  creditor  by  a  third  party  is  not  a  prefer- 


44 


ence. 

There  have  been  a  number  of  decisions  on  the  question 
whether  payments  on  running-  accounts  constitute  a  pref- 
erence or  not.  It  will  appear,  as  the  result  of  the  authori- 
ties, that  where  there  is  an  account  current,  with  goods  be- 
ing bought  and  payments  being  made  right  along,  pay- 
ments on  running  accounts  which  do  not  substantially 
diminish  the  debtor's  assets  and  are  substantially  covered 
by  additional  purchases  are  not  preferences,  but  payments 
which  do  substantially  diminish  the  assets  are  prefer- 
ences.45 

Paragraph  "i"  of  section  57  permits  parties  liable  to  the 
creditor  secondarily  to  the  bankrupt  to  prove  the  claim  in 
the  creditor's  name,  and  be  subrogated  to  his  rights,  if  the 
creditor  fails  to  prove  it.  However,  when  there  is  only  a 
part  payment,  the  claim  cannot  be  proved  by  the  surety, 
but  must  be  proved  by  the  creditor.46  And  in  such  case 
the  surety  stands  in  the  shoes  of  the  creditor,  and  can  only 
prove  the  claim  if  the  creditor  could,  so  that,  if  the  creditor 
is  prevented  by  a  preference  from  proving  his  claim,  the 
surety  cannot  prove  it.47 

Under  this  section  a  partner  who  had  sold  out  his  inter- 
est in  the  firm  under  an  agreement  that  the  remaining  part- 
ner should  assume  all  the  firm  debts,  and  who  has  been 
held  liable  for  one  of  these  debts,  practically  occupies  the 

44Dressel  v.  North  State  Lumber  Co.  (D.  C.)  119  Fed.  531.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  311;  Cent.  Dig.  §§  497-500. 

45  pirie  v.  Trust  Co.,  182  U.  S.  438,  21  Sup.  Ct.  906,  45  L.  Ed. 
1171;    JAQUITH  v.  ALDEN,  189  U.   S.  78,  23  Sup.  Ct.  649,  47  L. 
Ed.  717 ;   Joseph  Wild  &  Co.  v.  Provident  Life  &  Trust  Co.,  214  U.  S. 
292,  29  Sup.  Ct.  619,  53  L.  Ed.  1003.     See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  811;  Cent.  Dig.  §§  497-500. 

46  in  re  Hey  man  (D.  C.)  95  Fed.  800;    Sessler  v.  Paducah  Distil- 
leries Co.,  168  Fed.  44,  93  C.  C.  A.  466.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §§  311,  316;   Cent.  Dig.  §§  497-500. 

47  in  re  Schmechel  Cloak  &  Suit  Co.   (D.  C.)  104  Fed.  64.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  Sll;   Cent.  Dig.  §§  497-500. 


§  53)  THE  CREDITORS'  MEETING  135 

position  of  surety,  and  can  prove  such  a  claim,  though  not  so 
as  to  come  into  competition  with  debts  for  which  he  might 
personally  be  liable.48 

The  Debts  Provable  against  a  Bankrupts  Estate 

All  debts  which  are  in  existence  as  of  the  date  of  filing 
the  petition  are  provable  against  the  estate.49  The  debts 
provable  are  enumerated  50  as  those  which  are  a  fixed  lia- 
bility, as  evidenced  by  a  judgment  or  an  instrument  in 
writing,  absolutely  owing  at  the  time  of  the  filing  of  the 
petition,  whether  then  payable  or  not,  with  any  interest 
thereon  which  would  have  been  recoverable  at  that  date, 
or  with  a  rebate  of  interest  upon  such  as  are  not  payable 
and  did  not  bear  interest.  Under  this  clause  the  right  to 
prove  a  debt  depends  upon  its  nature,  and  not  upon  the 
probability  of  realizing  anything  out  of  it.61 

There  is  a  conflict  of  decisions  whether  a  judgment  in  a 
state  court  for  a  fine  in  a  criminal  case  comes  under  this 
section  or  not.  District  Judge  Jackson,  of  West  Virginia, 
has  held  that  it  comes  within  the  terms  of  this  clause  and 
is  provable.52  On  the  other  hand,  District  Judge  Evans,  of 
Kentucky,  has  held  that  such  a  debt  is  not  provable ;  going 
on  the  theory  that,  if  provable,  it  is  barred  by  a  discharge, 
and  that  it  could  not  have  been  the  intent  of  Congress  to 
practically  confer  upon  any  one  but  the  state  officials  what 
would  be  substantially  a  pardoning  power.68  Notwith- 

48  in  re  Dillon  (D.  C.)  100  Fed.  627.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  809;   Cent.  Dig.  §§  555-564. 

49  In  re  Burka  (D.  C.)  104  Fed.  326;    In  re  Reading  Hosiery  Co. 
(D.  C.)  171  Fed.  195;    Zavelo  v.  Reeves,  227  U.  S.  625,  33  Sup.  Ct. 
365,  57  L.  Ed.  .    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  31$. 

so  Section  63. 

si  In  re  Bates  (D.  C.)  100  Fed.  263.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  S14. 

52  in  re  Alderson  (D.  C.)  98  Fed.  588.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  815;  Cent.  Dig.  §§  488,  491. 

53  in  re  Moore  (D.  C.)  Ill  Fed.  145.    In  the  later  cases  of  In  re 
Southern  Steel  Co.  (D.  C.)  183  Fed.  498,  and  In  re  York  Silk  Mfg. 
Co.  (D.  C.)  188  Fed.  735,  it  was  held  that  claims  for  penalties  im- 


136  DISTRICT  COURT — BANKRUPTCY  (Ch.  6 

standing  the  force  of  this  objection,  such  a  debt  would  cer- 
tainly come  under  the  language  of  this  clause,  as  being  a 
fixed  liability  evidenced  by  a  judgment;  and,  when  the 
language  of  the  act  is  so  clear,  it  would  hardly  seem  neces- 
sary to  go  outside  of  its  language. 

A  liability  which  is  in  existence  at  the  time  of  the  filing 
of  the  petition  and  becomes  fixed  thereafter  can  be  proved, 
provided  it  is  done  within  the  one  year  allowed  for  proof  of 
claims.6* 

In  the  case  of  an  agreement  by  a  party  to  pay  an  an- 
nuity, a  given  penalty  being  fixed  in  the  agreement,  the 
holder  of  the  annuity  can  prove  this  as  a  debt  to  the 
amount  of  the  penalty  if  the  annuity  calculated  on  the 
usual  life  tables  equals  or  exceeds  the  penalty.56 

In  case  of  a  nonnegotiable  instrument  which  has  been 
assigned,  the  assignee  stands  in  the  shoes  of  the  assignor, 
and  can  only  prove  for  such  an  amount  as  the  assignor  could 
prove.66 

A  claim  for  alimony  based  upon  a  decree  allowing  it  is 
not  provable  against  the  estate.  It  is  not  supposed  to  arise 
out  of  contract,  and  it  is  not  a  fixed  liability  in  the  sense 
of  the  statute.67 

The  next  largest  class  of  debts  enumerated  are  those 
founded  upon  a  contract,  express  or  implied.  A  claim 
founded  upon  a  contract  must,  however,  at  least  be  certain. 

posed  under  state  laws  were  not  provable  debts,  but  apparently  the 
claims  considered  in  those  cases  had  not  been  reduced  to  judgment. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  315;  Cent.  Dig.  §§  488,  49  L 

54  In  re  Gerson  (D.  C.)  105  Fed.  891;  Moch  v.  Bank,  107  Fed.  b97, 
47  C.  C.  A.  49 ;  In  re  Lyons  Beet  Sugar  Refining  Co.  (D.  C.)  192  Fed. 
445.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  314. 

65  Cobb  v.  Overman,  109  Fed.  65,  48  C.  C.  A.  223,  54  L.  R.  A.  3G9. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  316;  Cent.  Dig.  §§  474-477. 

56  in  re  Wiener  &  Goodman  Shoe  Co.  (D.  C.)  96  Fed.  949.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  314. 

57  Audubon  v.  Shufeldt,  181  U.  S.  575,  21  Sup.  Ct.  735,  48  L.  Ed. 
1009.     See,  also,  Dunbar  v.  Dunbar,  190  U.  S.  340,  23  Sup.  Ct.  757, 
47  L.  Ed.  1084.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  315. 


§  53)  THE  CREDITORS'  MEETING  137 

For  instance,  a  claim  for  breach  of  warranty  due  to  an  out- 
standing dower  interest,  when  both  husband  and  wife  are 
still  living,  is  too  contingent  to  be  made  the  subject  of  a 
provable  claim,  though  a  claim  for  breach  of  warranty  ac- 
tually matured  is  not.58 

The  fifth  subdivision  of  this  paragraph  allows  provable 
debts  to  be  reduced  to  judgment  after  the  filing  of  the  peti- 
tion, and  before  the  consideration  of  an  application  for  a 
discharge.  The  effect  of  a  judgment,  however,  is  not  to 
create  any  lien,  but  simply  to  establish  the  debt.58  Hence 
under  this  act  the  mere  suggestion  of  bankruptcy  is  not 
sufficient  to  stop  proceedings  in  a  state  court  on  a  provable 
claim,  as  such  claim  can  still  be  prosecuted  to  judgment. 

The  last  clause  of  the  sixty-third  section  provides  that 
unliquidated  claims  against  the  bankrupt  may,  pursuant 
to  application  to  the  court,  be  liquidated  in  such  manner  as 
it  shall  direct.  If  they  come  within  the  class  of  provable 
claims,  they  may  be  the  basis  of  an  involuntary  proceeding, 
though  not  reduced  to  judgment.80 

Under  this  provision,  claims  arising  out  of  contract, 
whose  amount  is  not  fixed,  must  be  liquidated  under  the 
direction  of  the  court.  Where  the  result  of  bankruptcy  is 
to  put  an  end  to  a  continuing  contract,  damages  for  failing 
to  complete  such  an  executory  contract  up  to  the  date  of 
filing  the  petition  can  be  proved.61 

Damages  arising  out  of  a  tort — as,  for  instance,  an  as- 


v.  Magwire,  15  Wall.  549,  21  L.  Ed.  232;  In  re  Morales 
(D.  C.)  105  Fed.  761.  See,  also,  Dunbar  v.  Dunbar,  190  U.  S.  340,  23 
Sup.  Ct.  757,  47  L.  Ed.  1084.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.) 
I  318;  Cent.  Dig.  §§  481,  482. 

so  In  re  McBryde  (D.  C.)  99  Fed.  686.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  319;  Cent.  Dig.  §§  491,  49S. 

eo  Frederic  L.  Grant  Shoe  Co.  T.  W.  M.  Laird  Co.,  212  U.  S.  445, 
29  Sup.  Ct.  332,  53  L.  Ed.  591.  See  "Bankruptcy"  Dec.  Dig.  (Key- 
No.)  §  320;  Cent.  Dig.  §§  419,  480. 

si  In  re  Silverman  (D.  C.)  101  Fed.  219;  In  re  Stern,  116  Fed.  604, 
54  C.  C.  A.  60.  See  ''Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  318,  320. 


138  DISTEICT  COURT — BANKRUPTCY  (Ch.  6 

sault  and  battery — must  be  liquidated  before  they  can  be 
proved,  if  they  are  provable  at  all.82 

Damages  are  so  provable  if  they  arise  out  of  contract, 
even  though  the  form  of  the  action  may  be  ex  delicto.  For 
instance,  damages  for  a  breach  of  contract  of  marriage  are 
provable.63 

But  in  Re  Hirschman,64  District  Judge  Marshall  decides 
that  debts  which  are  in  their  nature  torts  are  not  provable 
against  the  bankrupt's  estate  at  all.  He  holds  that  the 
only  debts  provable  are  those  named  in  section  63a  of  the 
act,  all  of  which  arise  out  of  contract,  in  some  form  or 
another,  and  that  the  concluding  clause  of  that  same  sec- 
tion, allowing  the  liquidation  of  unliquidated  claims,  sim- 
ply refers  to  the  claims  provable  under  the  first  section, 
and  is  not  intended  to  enlarge  the  list  of  debts  which  could 
be  proved  beyond  those  enumerated  in  the  first  section. 

Debt  Barred  by  Statute  of  Limitations 

There  has  been  a  good  deal  of  discussion,  both  under  the 
former  act  and  the  present  one,  as  to  the  circumstances 
under  which  a  debt  barred  by  the  statute  of  limitations 
may  be  proved.  It  may  be  considered  settled  by  the  pre- 
ponderance of  authority,  at  least,  that  the  bar  of  the  limi- 
tation is  applied  as  of  the  district  of  the  debtor's  residence 
at  the  time  of  adjudication.65  And  the  better  opinion,  also, 

62  in  re  Hirschman  (D.  C.)  104  Fed.  69.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  320;  Cent.  Dig.  §§  419,  480. 

es  in  re  Fife  (D.  C.)  109  Fed.  880;  In  re  Warth  (D.  C.)  196  Fed. 
571.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  SIS. 

e*  (D.  C.)  104  Fed.  69.  This  view  is  taken  also  by  Judge  Grubb 
in  In  re  Southern  Steel  Co.  (D.  C.)  183  Fed.  498.  He  bases  his  hold- 
ing largely  upon  an  intimation  of  Mr.  Justice  Peckham  in  Dunbar  v. 
Dunbar,  190  U.  S.  340,  23  Sup.  Ct  757,  47  L.  Ed.  1084.  But  in  the 
later  case  of  Crawford  v.  Burke,  195  U.  S.  176,  25  Sup.  Ct  9,  49  L. 
Ed.  147,  the  question  is  expressly  reserved.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  320;  Cent.  Dig.  §§  479,  480. 

es  in  re  Noesen,  Fed.  Cas.  No.  10,288;  In  re  Cornwall,  Fed.  Cas. 
No.  3,250.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig. 
§473. 


§  53)  THE  CREDITORS'  MEETING  139 

is  that,  if  not  barred  at  the  date  of  adjudication,  it  cannot 
be  barred  at  all  during  the  pendency  of  the  proceedings — 
in  other  words,  the  filing  of  a  proceeding  in  bankruptcy 
stops  the  running  of  the  statute.66  It  is  settled,  also,  that, 
although  the  plea  of  the  statute  of  limitations  is  usually 
a  personal  plea,  yet,  in  a  bankruptcy  proceeding,  where 
creditors  are  equally  interested,  any  creditor  may  plead  it, 
or  may  require  the  trustee  to  plead  it.  And  the  insertion 
of  the  barred  debt  in  the  bankrupt's  petition  does  not  re- 
vive it.67 

In  spite  of  the  language  of  the  authorities,  however,  it  is 
difficult  to  understand  why  a  debt  barred  by  the  statute  of 
limitations  is  not  a  provable  debt.  It  would  seem,  on  prin- 
ciple, that  this  would  depend  on  the  policy  of  the  special 
statute  which  is  under  consideration.  In  some  states  the 
statute  of  limitations  destroys  both  the  contract  and  the 
remedy;  in  others,  it  merely  takes  away  the  remedy,  and 
the  debt  remains  a  debt  which  is  enforceable,  or  not,  ac- 
cording to  the  question  whether  any  plea  of  the  statute  is 
interposed  or  not. 

Hence  in  many  of  the  states  the  defense  of  the  statute 
cannot  be  raised  by  demurrer,  but  must  be  pleaded  spe- 
cially. In  Virginia,  for  instance,  the  statute  must  be  the 
subject  of  a  special  plea,  and  cannot  be  raised  by  demur- 
rer, for  the  reason  that  there  certainly  is  a  cause  of  action, 
and  whether  the  debtor  chooses  to  set  up  the  bar,  or  not, 
is  a  matter  of  defense.  As  the  provability  of  a  debt  de- 
pends not  upon  the  question  of  the  likelihood  of  recovery, 
but  upon  its  existence,  it  would  seem  that  in  suits  of  this 
sort  it  could  be  proved,  and  would  have  to  be  taken  notice 

e  e  in  re  Wright,  Fed.  Cas.  No.  18,068;  In  re  Eldridge,  Fed.  Cas. 
No.  4,331.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig. 
§  473. 

67  in  re  John  J.  Lafferty  &  Bro.  (D.  C.)  122  Fed.  558;  In  re  Put- 
man  (D.  C.)  193  Fed.  464.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
314;  Cent.  Dig.  §  473. 


140  DISTRICT   COURT — BANKRUPTCY  (Ch.  6 

of,  unless  either  the  bankrupt,  a  creditor,  or  the  trustee 
should  plead  the  statute.  Judge  Ray,  however,  has  held 
(on  what  impresses  the  author  as  sound  reasoning)  that 
although  insertion  of  an  outlawed  debt  in  the  schedule 
does  not  revive  it  as  to  creditors  or  prevent  them  from 
setting  up  the  act  of  limitations,  it  does  as  to  the  bankrupt 
himself,  so  long  as  it  does  not  affect  the  dividends  of  the 
other  creditors.68 


THE  EXAMINATION  OF  THE  BANKRUPT 

54.  The  law  requires  the  bankrupt  to  submit  to  an  exam- 
ination as  to  any  matters  which  may  affect  the  ad- 
ministration and  settlement  of  his  estate. 

Section  7  of  the  bankrupt  law  requires  the  bankrupt  to 
attend  the  first  meeting  of  his  creditors,  if  directed  by  a 
court  or  judge  so  to  do,  and,  when  present,  submit  to  an 
examination  concerning  the  conduct  of  his  business,  the 
cause  of  his  bankruptcy,  his  dealings  with  his  creditors 
and  other  persons,  the  amount,  kind,  and  whereabouts  of 
his  property,  and,  in  addition,  all  matters  which  may  affect 
the  administration  and  settlement  of  his  estate.  It  also 
provides  that  his  testimony  given  in  such  an  examination 
cannot  be  used  against  him  in  any  criminal  proceedings, 
and  further  that  he  cannot  be  required  to  attend  beyond 
a  given  distance  unless  provision  is  made  for  the  payment 
of  his  expenses.  This  examination  is  one  of  the  most  im- 
portant matters  that  can  come  before  the  first  meeting  of 
the  creditors.  The  fifty-eighth  section  entitles  creditors  to 
ten  days'  notice  of  all  examinations  of  the  bankrupt, 
though  the  general  notice  as  to  the  first  meeting  is  so 
worded  as  to  give  this  requisite  notice. 

es  in  re  Currier  (D.  C.)  192  Fed.  695.  See  "BanTtruptcy,"  Dec.  Dig. 
(Key-No.)  §  314;  Cent.  Dig.  §  473. 


§  54)  THE    EXAMINATION   OF  THE   BANKRUPT  141 

The  bankrupt  is  not  only  required  to  submit  to  an  exam- 
ination at  the  first  meeting,  but  at  other  meetings,  provided 
the  necessary  notices  are  given,  and  provision  as  to  ex- 
penses, etc.,  carried  out.  As  he  alone  can  give  the  informa- 
tion almost  essential  to  the  proper  management  of  the 
bankrupt  estate,  the  ninth  section  of  the  act  provides  a 
method  of  holding  him  to  bail,  or  under  a  modified  form  of 
custody  upon  satisfactory  proof  that  he  is  about  to  leave 
the  district  to  avoid  examination,  and  that  his  departure 
will  defeat  the  proceedings  in  bankruptcy.  The  examina- 
tion may  be  had  prior  to  the  adjudication.60 

In  Re  Lipke  70  it  was  held  that  this  ninth  section  of 
the  act  was  not  exclusive  in  its  provisions  as  to  requiring 
the  attendance  of  the  bankrupt,  but  that,  under  subdivision 
15  of  the  second  section,  which  gives  the  courts  a  right  to 
make  such  orders,  issue  such  process,  and  enter  such  judg- 
ments in  addition  to  those  specifically  provided  for  as  may 
be  necessary  for  the  enforcement  of  a  provision  of  this 
act,  a  writ  in  the  nature  of  ne  exeat  may  be  issued  to  pre- 
vent the  bankrupt  from  leaving  the  district,  even  in  cases 
not  covered  by  the  ninth  section. 

When  the  bankrupt  is  present  for  examination,  creditors 
whose  claims  are  in  the  list,  even  though  their  debts  are 
not  proved,  are  entitled  to  examine.71  When  the  examina- 
tion is  under  way,  it  has  been  held  that  a  voluntary  bank- 
rupt cannot  refuse  to  give  up  papers  or  necessary  docu- 
ments on  the  ground  that  they  might  incriminate  him  or 
might  be  used  against  him  in  criminal  proceedings ;  it 
being  held  that  the  filing  of  a  voluntary  petition  is  a  waiver 


e»  Cameron  v.  United  States,  192  Fed.  548,  113  C.  C.  A.  20.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  236;   Cent.  Dig.  §§  393,  394. 

70  (D.  C.)  98  Fed.  970.    See,  also,  In  re  Berkowitz  (D.  C.)  173  Fed. 
1013.     See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  237. 

71  In  re  Samuelsohn  (D.  C.)  174  Fed.  911;    In  re  Barrager  (D.  C.) 
191  Fed.  247.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  2^1. 


142  DISTRICT   COURT — BANKRUPTCY  (Ch.  6 

of  the  constitutional  provision  protecting  a  man  from  self- 
incrimination.72 

It  has  also  been  held  that  a  bankrupt  cannot  refuse  to  be 
sworn  at  the  outset  of  the  examination  on  the  ground  that 
it  might  incriminate  him,  but  that  he  can  claim  the  con- 
stitutional provision  during  the  examination  whenever  a 
question  is  asked  that  might  incriminate  him.  And  in  this 
same  case  it  was  held,  that  the  provision  in  the  seventh 
section  to  the  effect  that  the  bankrupt's  testimony  should 
not  be  offered  against  him  in  any  criminal  proceedings  was 
not  as  extensive  a  protection  as  the  constitutional  provi- 
sion against  self-crimination;  implying  that,  where  his 
answers  might  give  information  that  would  lead  to  a  bet- 
ter preparation  of  a  criminal  case  against  him,  he  was  pro- 
tected by  the  constitutional  provision,  and  could  not  be  re- 
quired to  answer.73 

The  examination  of  the  bankrupt  may  go  into  transac- 
tions more  than  four  months  old,  if  pertinent  in  explaining 
transactions  less  than  four  months  old.7* 

The  twenty-first  section  of  the  act  as  originally  passed 
permitted  the  examination  not  only  of  the  bankrupt,  but  of 
any  designated  person,  concerning  the  acts,  conduct,  or 
property  of  the  bankrupt  whose  estate  is  in  process  of  ad- 
ministration, provided  that  designated  person  was  a  com- 
petent witness  under  the  laws  of  the  state  in  which  the 
proceeding  was  pending.  Under  this  provision  the  wife  of 
the  bankrupt  could  be  examined  if  she  was  a  competent 

72  In  re  Sapiro  (D.  C.)  92  Fed.  340.  Compelling  the  bankrupt  to 
surrender  his  books  of  account  does  not  violate  the  constitutional 
provision,  as  this  is  not  a  question  of  testimony  but  of  surrendering 
property  which  he  no  longer  owns.  In  re  Harris,  221  U.  S.  274,  31 
Sup.  Ct.  557,  55  L.  Ed.  732.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.) 
§  238;  Cent.  Dig.  §  406. 

7  a  in  re  Scott  (D.  C.)  95  Fed.  815;  In  re  Levin  (D.  C.)  131  Fed. 
388;  In  re  Feldstein  (D.  C.)  103  Fed.  269.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  241. 

7*  In  re  Brundage  (D.  C.)  100  Fed.  613.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  242;  Cent.  Dig.  §§  399-401. 


§  54)  THE   EXAMINATION   OF  THE   BANKRUPT  143 

witness  under  the  laws  of  the  state;  otherwise  not.  And 
her  examination  as  to  property  in  her  possession,  if  rea- 
sonably pertinent,  might  also  go  back  of  four  months.75 

This  twenty-first  section  of  the  act,  however,  has  been 
amended  by  the  act  of  February  5,  1903,  so  as  to  read  as 
follows :  "Sec.  21.  (a)  A  court  of  bankruptcy,  may,  upon 
application  of  any  officer,  bankrupt,  or  creditor,  by  order 
require  any  designated  person,  including  the  bankrupt  and 
his  wife,  to  appear  in  court  or  before  a  referee  or  the  judge 
of  any  state  court,  to  be  examined  concerning  the  acts,  con- 
duct, or  property  of  a  bankrupt  whose  estate  is  in  process 
of  administration  under  this  act:  provided  that  the  wife 
may  be  examined  only  touching  business  transacted  by  her 
or  to  which  she  is  a  party,  and  to  determine  the  fact  wheth- 
er she  has  transacted  or  been  a  party  to  any  business  of 
the  bankrupt." 

Under  this  amendment  the  wife  was  made  a  competent 
witness  irrespective  of  the  provisions  of  the  state  law. 

But  the  amendment  of  June  29,  1906,  to  section  858  of 
the  Revised  Statutes  T6  seems  to  have  restored  the  provi- 
sions of  the  state  law  as  to  all  questions  of  competency. 
The  original  terms  of  section  858  applied  the  provisions  of 
the  state  law  as  to  the  competency  of  witnesses  "in  the 
courts  of  the  United  States  in  trials  at  common  law  and  in 
equity  and  admiralty." 

The  amendment  adopts  the  state  rules  as  to  compe- 
tency "in  any  civil  action,  suit  or  proceeding  in  the  courts 
of  the  United  States." 

This  language  makes  it  difficult  to  escape  the  conclu- 
sion that  Congress  intended  by  it  to  include  the  bank- 
ruptcy courts. 

TO  In  re  Foerst  (D.  C.)  93  Fed.  190;  In  re  Mayer  (D.  C.)  97  Fed. 
328.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  242;  Cent.  Dig.  §§ 
399-401. 

T«  Ante,  p.  12. 


DISTRICT   COURT  —  BANKRUPTCY  (Ch.  7 


CHAPTER  VII 

THE  DISTRICT  COURT  (Continued)—  BANKRUPTCY  (Continued) 

55.  The  Trustee. 

56.  The  Title  of  the  Trustee. 

57.  The  Trustee's  Duties  of  Administration  —  Recordation  of  Decree 

of  Adjudication. 

58.  Same  —  The  Collection  of  the  Assets. 

59.  Same  —  Trustee's  Rights  against  Parties  Claiming  Adversely  un- 

der Alleged  Void  Transfers,  etc. 

60.  Same  —  The  Circumstances  Avoiding  an  Alleged  Illegal  Transfer. 

61.  Same  —  Same  —  Insolvency. 

62.  The  Trustee's  Interest  in  Insurance  Policies. 

63.  The  Trustee's  Interest  in  Rights  of  Action. 

64.  The  Trustee's  Power  of  Sale. 

65.  The  Trustee's  Duties  as  to  Distribution  of  the  Estate. 

66.  The  Trustee's  Duties  as  to  the  Bankrupt's  Exemptions. 

THE  TRUSTEE 

55.  The  election  of  a  trustee  is  part  of  the  business  of  the 
first  creditors'  meeting.  The  forty-fourth  section 
of  the  act  vests  the  right  to  select  a  trustee  or 
trustees  in  the  creditors,  except  that,  if  the  credit- 
ors do  not  appoint  a  trustee  or  trustees,  the  court 
shall  do  so.  And  the  seventeenth  subdivision  of 
the  second  section  also  gives  the  court  the  right 
to  appoint  trustees  pursuant  to  the  recommenda- 
tion of  creditors,  or  where  they  neglect  to  recom- 
mend the  appointment  of  trustees. 

In  voting  on  the  election  of  a  trustee  and  other  matters 
coming  before  the  creditors'  meeting,  the  fifty-sixth  sec- 
tion of  the  act  provides  that  a  majority  vote,  in  number 
and  amount,  of  all  creditors  whose  claims  have  been  al- 
lowed and  are  present,  shall  be  necessary  to  pass  upon 
any  matter  before  the  meeting.  Under  this  provision,  all 


§  56)  THE   TITLE    OF   THE   TRUSTEE  145 

creditors  are  counted  whose  claims  have  been  allowed  and 
who  are  present  in  person  or  by  duly  authorized  attorney. 
If,  for  the  purpose  of  voting,  the  attorney's  proxy  is  de- 
fective, or  he  has  no  proxy  at  all,  and  on  that  ground  can- 
not vote,  the  creditor  is  not  present.1 

A  general  representation  of  a  creditor  as  attorney  is  not 
sufficient  to  give  him  a  vote.  The  attorney  must  have  an 
express  written  proxy.2 

The  election  of  a  trustee  is  subject  to  approval  by  the 
referee  or  judge,  but  this  power  of  approval  does  not  con- 
fer the  power  to  set  aside  the  choice  of  the  creditors  and 
name  a  trustee  not  chosen  by  the  creditors.  The  effect 
of  the  veto  is  to  necessitate  another  election.  It  is  only 
when  the  creditors  fail  to  make  any  appointment  that  the 
referee  or  judge  can  act.3 

The  trustee  is  required  by  section  45  to  be  some  in- 
dividual competent  to  perform  the  duties,  and  a  resident 
of  the  judicial  district  wherein  he  is  appointed,  or  a  cor- 
poration authorized  by  its  charter  to  act  as  such;  and  he 
is  required  by  the  fiftieth  section  of  the  act  to  give  bond 
for  the  faithful  performance  of  his  official  duties. 

THE  TITLE  OF  THE  TRUSTEE 

56.  The  trustee's  title  vests  as  of  the  date  of  the  adjudica- 
tion, under  the  provisions  of  section  70  of  the  act. 
But  although  his  title  vests  as  of  that  date,  it 
covers  all  property  owned  by  the  bankrupt  at  the 
date  of  filing  the  petition,  including  in  this  all 
property  which  has  been  illegally  assigned. 

1  In  re  Henschel,  113  Fed.  443,  51  C.  C.  A.  277.    See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  123;   Cent.  Dig.  §§  171-179. 

2  In  re  Lazoris  (D.  C.)  120  Fed.  716.    See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  123;  Cent.  Dig.  §§  171-179. 

s  In  re  Hare  (D.  C.)  119  Fed.  246 ;  In  re  Van  De  Mark  (D.  C.)  175 
Fed.  287.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  126,  127;  Cent. 
Dig.  §§  182,  183. 

HUGHES  FED.PE.(2o  ED.) — 10 


146  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

The  title  of  the  trustee  is  the  usual  title  of  a  statutory 
assignee.  It  is  not  the  title,  by  any  means,  of  an  innocent 
holder  of  negotiable  paper.  He  acquires  the  bankrupt's 
interest  when  that  is  such  an  interest  as  would  be  good 
against  the  bankrupt's  creditors.  For  instance,  under  the 
mechanic  lien  laws  of  the  different  states,  some  of  these 
liens  relate  back  to  the  date  of  commencing  the  work; 
others,  only  to  the  date  of  giving  the  notice.  If,  therefore, 
work  has  been  done  which  would  be  the  subject  of  a  lien 
from  the  inception  of  the  work,  the  trustee  would  take  the 
property  subject  to  that  lien.  If,  on  the  other  hand,  the 
lien  dated  only  from  the  giving  of  the  notice,  and  that  no- 
tice had  not  been  given  at  the  commencement  of  pro- 
ceedings, the  trustee  takes  the  property  clear  of  the  lien.4 

On  the  other  hand,  any  liens  or  charges  that  would  be 
void  as  against  the  bankrupt  and  his  creditors  are  voidable 
by  the  trustee;  and,  conversely,  any  which  are  good  as 
against  the  creditors  of  the  bankrupt  are  good  against 
the  trustee.5  It  may  be,  however,  that,  even  where  it 
eventually  turns  out  that  the  transaction  is  valid,  yet,  for 
the  purpose  of  administering  the  bankrupt  estate,  the 
court  would  have  jurisdiction  of  any  property  in  the  pos- 
session of  the  bankrupt,  or  to  which  the  trustee  might 
claim  a  color  of  title.  In  other  words,  under  the  seventh 
subdivision  of  section  2,  the  estate  to  be  administered  by 
the  court  may  be  more  extensive  than  the  property  which 
would  on  full  investigation  finally  pass  to  the  trustee.6 

*  In  re  Coulter,  Fed.  Gas.  No.  3,276 ;  In  re  Roeber,  121  Fed.  449, 
57  C.  C.  A.  565;  In  re  Laird,  109  Fed.  550,  48  C.  C.  A.  538;  In  re 
Grissler,  136  Fed.  754,  69  C.  C.  A.  406.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  192;  Cent.  Dig.  §  294. 

5  NORTON  v.  HOOD,  124  U.  S.  20,  8  Sup.  Ct.  357,  31  L.  Ed.  364 ; 
In  re  New  York  Economical  Printing  Co.,  110  Fed.  514,  49  C.  C.  A. 
133 ;  In  re  Williamsburg  Knitting  Mill  (D.  C.)  190  Fed.  871 ;  Bryant 
v.  Swofford,  214  U.  S.  279,  29  Sup.  Ct.  614,  53  L.  Ed.  997;  Holt  v. 
Crucible  Steel  Co.,  224  U.  S.  262,  32  Sup.  Ct.  414,  56  L.  Ed.  756.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  140,  184. 

e  In  re  Union  Trust  Co.,  122  Fed.  937,  59  C.  C.  A.  461.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  140;  Cent.  Dig.  §§  193,  198. 


§  56)  THE   TITLE   OF   THE   TRUSTEE  147 

The  mere  fact,  however,  that  certain  property  is  in  the 
personal  custody  of  the  bankrupt,  does  not  necessarily  sub- 
ject it  to  the  control  of  the  trustee.  For  instance,  property 
that  the  bankrupt  might  hold  in  trust,  and  that  is  so  ear- 
marked as  to  be  capable  of  identification,  would  not  pass 
to  the  assignee.7 

While  the  title  of  the  trustee  dates  from  the  adjudica- 
tion, the  property  which  vests  in  him  dates  as  of  the  day 
of  filing  the  petition.8 

Character  of  Property  Which  Vests  in  Trustee 

The  character  of  the  property  which  vests  in  him  is  de- 
fined in  the  seventieth  section  of  the  act.  The  two  most 
general  classes  named  in  that  section  are  the  fourth  and 
fifth,  which  are  property  transferred  by  the  bankrupt  in 
fraud  of  his  creditors,  and  property  which  prior  to  the  fil- 
ing of  the  petition  he  could  by  any  means  have  transfer- 
red, or  which  might  have  been  levied  upon  and  sold  un- 
der judicial  process  against  him.  This  last  section  has 
been  held  to  have  a  very  extensive  meaning.  A  seat  in  a 
stock  exchange  which  could  be  transferred  vests  in  the 
trustee,  though  the  transfer  is  so  uncertain  that  it  re- 
quires the  consent  of  certain  authorities  of  the  exchange.8 
Under  the  act  of  1867  (14  Stat.  517,  c.  176)  it  was  held 
that  a  claim  to  share  in  the  sum  paid  to  the  United  States 
under  the  Geneva  award  on  account  of  the  Alabama  cap- 


7  Hosmer  v.  Jewett,  Fed.  Cas.  No.  6,713.  Sometimes  trust  funds  or 
property  may  be  traced.  It  turns  on  the  facts  of  each  case.  In  re 
Royea's  Estate  (D.  C.)  143  Fed.  182 ;  Block  v.  Rice  (D.  C.)  167  Fed. 
693;  In  re  Lindsley  &  Co.  (D.  C.)  185  Fed.  684;  In  re  Ennis,  187 
Fed.  728,  109  C.  C.  A.  476.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
140;  Cent.  Dig.  §§  J 98-225. 

s  In  re  Garcewich,  115  Fed.  87,  53  C.  C.  A.  510;  NORTON  v, 
HOOD,  124  U.  S.  20,  8  Sup.  Ct.  357,  31  L.  Ed.  364 ;  Everett  v.  Jud- 
son,  228  U.  S.  474,  33  Sup.  Ct.  568,  57  L.  Ed.  .  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  152;  Cent.  Dig.  §  194. 

»  PAGE  v.  EDMUNDS,  187  U.  S.  596,  23  Sup.  Ct.  200,  47  L.  Ed. 
318.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  143;  Cent.  Dig.  §§ 
194-224. 


148  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

tures  vested  in  the  assignee,  who  was  the  officer  corre- 
sponding to  the  trustee  under  the  present  act.10 

Under  this  clause  the  property  transferred  by  the  bank- 
rupt in  fraud  of  his  creditors  includes  any  property  which 
could  be  recovered  by  the  trustee  on  any  of  the  other 
grounds  specified  in  the  act. 

For  instance,  it  includes  property  recoverable  under  the 
clause  defining  illegal  transfers.  This  is  covered  by  the 
sixtieth  section  of  the  act.  In  its  original  form,  it  pro- 
vided that  a  person  should  be  deemed  to  have  given  a 
preference,  if,  being  insolvent,  he  has  procured  or  suffered 
a  judgment  to  be  entered  against  himself  in  favor  of  any 
person,  or  made  a  transfer  of  any  of  his  property,  and  the 
effect  of  the  enforcement  of  such  judgment  or  transfer  will 
be  to  enable  any  one  of  his  creditors  to  obtain  a  greater 
percentage  of  his  debt  than  any  other  of  such  creditors  of 
the  same  class.  And  paragraph  "b,"  §  60,  of  the  same  act 
provided  that  if  the  bankrupt  shall  have  given  a  prefer- 
ence within  four  months  before  the  filing  of  the  petition, 
or  after  the  filing  of  the  petition  and  before  the  adjudica- 
tion, and  the  person  receiving  it  or  to  be  benefited  thereby, 
or  his  agent  acting  therein,  shall  have  had  reasonable 
cause  to  believe  that  it  was  intended  thereby  to  give  a 
preference,  it  shall  be  voidable  by  the  trustee,  and  he  may 
recover  the  property  or  its  value  from  such  person. 

These  two  paragraphs  have  been  materially  changed  by 
the  amendments  of  February  5,  1903  (32  Stat.  799,  c.  487, 
§  13),  and  June  25,  1910  (36  Stat.  842,  c.  412,  §  11),  so  that 
they  now  read  as  follows  (U.  S.  Comp.  St.  1911,  p.  1506) : 

"Sec.  60  (a).  A  person  shall  be  deemed  to  have  given  a 
preference  if,  being  insolvent,  he  has,  within  four  months 
before  the  filing  of  the  petition,  or  after  the  filing  of  the 
petition  and  before  the  adjudication,  procured  or  suffered  a 
judgment  to  be  entered  against  himself  in  favor  of  any  per- 

10  Williams  v.  Heard,  140  U.  S.  529,  11  Sup.  Ct.  885,  35  L.  Ed.  550. 
See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  138;  Cent.  Dig.  §§  193-204. 


§  56)  THE   TITLE   OF   THE   TRUSTEE  149 

son,  or  made  a  transfer  of  any  of  his  property,  and  the  ef- 
fect of  the  enforcement  of  such  judgment  or  transfer  will 
be  to  enable  any  one  of  his  creditors  to  obtain  a  greater 
percentage  of  his  debt  than  any  other  of  such  creditors  of 
the  same  class.  Where  the  preference  consists  in  a  trans- 
fer, such  period  of  four  months  shall  not  expire  until  four 
months  after  the  date  of  the  recording  or  registering  of 
the  transfer,  if  by  law  such  recording  or  registering  is  re- 
quired." 

"(b).  If  a  bankrupt  shall  have  procured  or  suffered  a 
judgment  to  be  entered  against  him  in  favor  of  any  person 
or  have  made  a  transfer  of  any  of  his  property,  and  if,  at 
the  time  of  the  transfer,  or  of  the  entry  of  the  judgment, 
or  of  the  recording  or  registering  of  the  transfer  if  by 
law  recording  or  registering  thereof  is  required,  and  be- 
ing within  four  months  from  the  filing  of  the  petition  in 
bankruptcy  or  after  the  filing  thereof  and  before  the  ad- 
judication, the  bankrupt  be  insolvent  and  the  judgment  or 
transfer  then  operate  as  a  preference,  and  the  person  re- 
ceiving it  or  to  be  benefited  thereby,  or  his  agent  acting 
therein,  shall  then  have  reasonable  cause  to  believe  that 
the  enforcement  of  such  judgment  or  transfer  would  ef- 
fect a  preference,  it  shall  be  voidable  by  the  trustee  and 
he  may  recover  the  property  or  its  value  from  such  per- 
son. And  for  the  purpose  of  such  recovery  any  court  of 
bankruptcy,  as  hereinbefore  defined,  and  any  state  court 
which  would  have  had  jurisdiction  if  bankruptcy  had  not 
intervened,  shall  have  concurrent  jurisdiction." 

Where  the  preference  is  in  the  creation  of  liens,  it  is 
covered  by  the  sixty-seventh  section  of  the  act.  This  sec- 
tion has  not  been  changed  by  the  act  of  February  5,  1903, 
except  that  to  paragraph  "e"  has  been  added  a  sentence 
conferring  upon  the  bankruptcy  court  concurrent  jurisdic- 
tion with  the  state  court  which  would  have  had  jurisdic- 
tion if  bankruptcy  had  not  intervened  in  recovering  prop- 
erty illegally  transferred.  The  amendment  of  June  25, 


150  DISTRICT  COURT — BANKRUPTCY  (Ch.  7 

1910,  makes  a  slight  change  in  subdivision  "d,"  which  is 
unimportant  in  this  connection. 

In  order  to  constitute  an  illegal  preference,  actual  value 
must  pass.  Book  entries  intended  to  have  that  purpose, 
but  which  are  frustrated  and  create  no  harm,  are  not  of 
themselves  preferences.11  Nor  is  it  a  preference  to  pay 
claims  on  account  of  a  dower  interest  which  is  a  valid 
charge  upon  the  property.12 

An  assignment  for  creditors  is  also  a  preference,  and 
even  where  the  state  law  provides  that,  in  the  administra- 
tion of  assignments,  all  claims  for  wages  shall  be  pre- 
ferred that  preference  falls  with  it.  The  priorities  claimed 
by  the  bankrupt  law  are  exclusive  in  such  case,  and,  where 
a  priority  is  given  by  a  state  law,  not  in  the  nature  of  a 
lien  on  the  property,  but  simply  in  the  nature  of  a  direc- 
tion to  an  assignee  in  a  general  assignment  to  pay  the  same 
prior  to  other  claims,  such  claims  cannot  be  so  treated  if 
their  priority  arises  by  virtue  of  making  a  deed  of  assign- 
ment which  is  itself  voidable.13 

It  is  not,  however,  a  preference  where  a  debt  is  paid  in 
full,  and  then  a  new  bill  sold.  In  such  case  the  new  bill 
constitutes  a  new  transaction,  and  the  creditor  does  not 
have  to  surrender  his  prior  payment.14 

Under  paragraph  "d"  of  the  sixty-seventh  section,  as 
amended  June  25,  1910,  liens  created  for  a  present  consid- 
eration, and  properly  recorded  where  record  is  necessary, 
and  free  from  fraud,  are  upheld  to  the  extent  of  such  pres- 
ent consideration  only,  although  the  bankrupt  at  the  time 
of  the  creation  of  the  lien  is  insolvent.  And  where  a  mort- 

11  In  re  Steam  Vehicle  Co.  of  America  (D.  C.)  121  Fed.  939.    See 
"Bankruptcy"  Dec.  Dig.  (Key-No.)  §  165. 

12  In  re  Riddle's  Sons  (D.  C.)  122  Fed.  559.     See  "Bankruptcy" 
Dec.  Dig.  (Key-No.)  §  165. 

is  In  re  Erie  Lumber  Co.  (D.  C.)  150  Fed.  817,  824.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  184. 

i*  In  re  Wolf  &  Levy  (D.  C.)  122  Fed.  127;  JAQUITH  v.  ALDEN, 
189  U.  S.  78,  23  Sup.  Ct.  649,  47  L.  Ed.  717.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  165. 


§  56)  THE  TITLE   OF  THE   TRUSTEE  151 

gage  covers  such  a  debt,  and  also  an  old  debt  which  is 
against  the  act,  it  will  be  upheld  to  the  extent  of  the  valid 
debt.15 

Under  the  provision  setting  aside  conveyances  intend- 
ed to  hinder,  delay,  and  defraud,  -such  a  conveyance  may  be 
attacked  as  violating  the  ordinary  state  statutes  based  up- 
on the  statute  of  13  Elizabeth,  though  it  could  not  be  at- 
tacked under  the  illegal  preference  provision  of  the  bank- 
rupt act.16 

Paragraph  "f"  of  the  sixty-seventh  section  avoids  all 
liens  acquired  in  invitum  within  four  months  prior  to  the 
filing  of  the  petition  in  bankruptcy.  Under  this  section, 
if  the  lien  was  in  existence  more  than  four  months  prior, 
the  mere  fact  that  it  was  consummated  by  a  judgment  or 
attempted  to  be  enforced  by  execution  after  the  four 
months  did  not  avoid  it.  If,  on  the  other  hand,  an  execu- 
tion had  been  levied  and  the  property  sold  under  it,  the 
purchaser,  if  innocent  of  fraud,  acquired  a  good  title;  and 
the  money,  if  the  lien  was  void,  would  go  to  the  trustee,  or, 
if  valid,  would  go  to  the  execution  creditor.  So  the  ques- 
tion of  the  lien  on  an  execution  is  not  so  important  as  the 
question  of  the  lien  of  the  judgment.  If  the  judgment  is 
more  than  four  months  old,  it  is  valid,  though  the  execu- 
tion is  issued  within  the  four  months.  If  the  judgment  is 
less  than  four  months  old,  it  is  invalid,  and  the  execution 
upon  it  is  also  invalid.17 

is  In  re  Soudan  Mfg.  Co.,  113  Fed.  804,  51  C.  C.  A.  476;  Davis  v. 
Turner,  120  Fed.  605,  56  C.  C.  A.  669 ;  In  re  Dismal  Swamp  Contract- 
ing Co.  (D.  C.)  135  Fed.  415 ;  In  re  Jackson  Brick  &  Tile  Co.  (D.  C.) 
189  Fed.  636,  645.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  165; 
Cent.  Dig.  §§  259-266. 

is  Means  v.  Dowd,  128  U.  S.  273,  9  Sup.  Ct  65,  32  L.  Ed.  429.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  175;  Cent.  Dig.  §§  2^7,  248. 

17  In  re  Kenney  (D.  C.)  95  Fed.  427;  Clarke  v.  Larremore,  188  U. 
S.  486,  23  Sup.  Ct.  363,  47  L.  Ed.  555 ;  In  re  Martin,  193  Fed.  841,  113 
C.  C.  A.  627;  In  re  Ransford,  194  Fed.  658,  115  C.  C.  A.  560; 
Humphrey  v.  Tatman,  198  U.  S.  91,  25  Sup.  Ct.  567,  49  L.  Ed.  956. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  196;  Cent.  Dig.  §§  306-316. 


152  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

Although  the  lien  is  simply  a  lien  acquired  by  the  filing 
of  a  creditors'  bill,  and  subject  to  the  contingencies  of  such 
a  suit,  it  is  valid,  if  finally  upheld  on  the  merits,  provided 
it  has  been  acquired  more  than  four  months  before  the 
filing  of  the  proceedings  in  bankruptcy.18 


THE  TRUSTEE'S  DUTIES   OF  ADMINISTRATION 

— RECORDATION  OF  DECREE  OF 

ADJUDICATION 

57.  The  trustee  is  required,  within  thirty  days  after  the  ad- 
judication, to  file  a  certified  copy  of  the  decree  of 
adjudication  in  the  office  where  conveyances  of 
real  estate  are  recorded  in  every  county  where 
the  bankrupt  owns  real  estate  not  exempt  from 
execution. 

The  forty-seventh  section  of  the  act  sets  out  the  trus- 
tee's duties  in  connection  with  the  management  of  the 
estate.  An  important  addition  to  the  original  section  has 
been  made  by  the  act  of  February  5,  1903.  It  provides 
that  the  trustee  shall  within  thirty  days  after  the  adjudica- 
tion file  a  certified  copy  of  the  decree  of  adjudication  in 
the  office  where  conveyances  of  real  estate  are  recorded  in 
every  county  where  the  bankrupt  owns  real  estate  not  ex- 
empt from  execution,  and  pay  the  fee  for  such  filing.  The 
value  of  this  as  a  link  in  the  chain  of  title  of  the  bankrupt's 
estate  is  great.  The  act  of  June  25,  1910,  amended  subdi- 
vision "a"  (2)  of  this  same  section  by  giving  trustees  as 
to  property  under  the  custody  of  the  bankrupt  court  the 
same  remedies  as  those  possessed  by  lien  or  judgment 
creditors. 


is  METCALF  BROS.  v.  BARKER,  187  U.  S.  165,  23  Sup.  Ct.  67,  47 
L.  Ed.  122;  In  re  Crafts-Riordon  Shoe  Co.  (D.  C.)  185  Fed.  931.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  195;  Cent.  Dig.  §§  287-289. 


58)          TRUSTEE'S  DUTIES  OF  ADMINISTRATION  153 


SAME—THE    COLLECTION    OF   THE   ASSETS 

58.  It  is  the  trustee's  duty  to  collect  the  assets  of  the  bank- 
rupt estate. 

If  the  bankrupt  does  not  turn  over  the  proper  books  or 
other  papers,  the  trustee  may  institute  contempt  proceed- 
ings to  compel  him  to  do  so.19  As  to  any  property  in  the 
hands  of  parties  not  asserting  adverse  claim  thereto,  he 
may  proceed  summarily  in  the  bankruptcy  court  itself.20 
Nor  is  a  party  an  adverse  claimant  merely  because  he  re- 
fuses to  surrender  property.  If  he  sets  up  an  adverse 
claim,  and  the  pleading  which  sets  it  up  shows  on  its  face 
no  title,  then  the  bankruptcy  court  has  jurisdiction  to  de- 
side  whether  he  is  an  adverse  claimant,  or  not,  and  to  pro- 
ceed accordingly.  For  instance,  if  the  party  asserts  a  lien 
by  attachment,  which,  upon  his  own  claim,  is  avoidable 
under  the  provisions  of  the  bankrupt  law,  he  is  not  an  ad- 
verse claimant.  In  order  to  make  him  such,  he  must  claim 
a  right  to  hold  the  property  under  a  bona  fide  colorable 
claim  of  title.  For  instance,  a  surety  on  a  bail  bond  of 
the  bankrupt,  with  whom  the  bankrupt  had  deposited 
money  to  protect  his  interests,  and  who  held  it  for  that 
purpose,  is  an  adverse  claimant.21  So,  too,  a  party  claim- 
ing property  alleged  to  be  fraudulently  conveyed,  where 
the  question  whether  the  conveyance  was  fraudulent  or 
not  was  a  matter  of  fact,  and  could  not  necessarily  be  set- 
tled by  an  inspection  of  the  pleadings  themselves,  is  an  ad- 

i»  In  re  Wilson  (D.  C.)  116  Fed.  419.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  136;  Cent.  Dig.  §§  233,  235. 

20  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269,  46  L.  Ed.  405: 
Staunton  v.  Wooden,  179  Fed.  61,  102  C.  C.  A.  355.    See  "Bankrupt- 
cy," Dec.  Dig.  (Ken-No.)  §  288. 

21  Jaquith  v.  Rowley,  188  U.  S.  620,  23  Sup.  Ct.  369,  47  L.  Ed.  620. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  293. 


154  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

verse  claimant.22  Under  this  principle,  an  assignee  in  a 
deed  of  general  assignment  is  not  an  adverse  claimant,  and 
can  be  proceeded  against  summarily,  for  that  is  an  act  of 
bankruptcy  of  itself,  and  is  a  matter  of  law,  which  the  as- 
signee must  know,  and  therefore  for  which  he  cannot  as- 
sert a  colorable  adverse  claim.23 


SAME— TRUSTEE'S    RIGHTS    AGAINST    PARTIES 

CLAIMING   ADVERSELY  UNDER  ALLEGED 

VOID  TRANSFERS,  ETC. 

59.  The  right  to  avoid  transfers  or  illegal  preferences  un- 
der the  bankruptcy  act  is  vested  in  the  trustee 
alone.  Creditors  of  the  bankrupt  cannot  proceed 
in  their  own  names,  though  they  allege  that  they 
have  applied  to  the  trustee  and  that  he  has  re- 
fused to  proceed ;  for  the  bankrupt  act  makes  him 
the  sole  judge  of  the  propriety  of  such  proce- 
dure.24 

The  usual  remedy  resorted  to  for  the  purpose  of  avoiding 
transfers  forbidden  by  the  act  is  a  bill  in  equity  in 
the  name  of  the  trustee.25 

22  in  re  Hartman  (D.  C.)  121  Fed.  940.     See  "Bankruptcy,"  Dec,. 
Dig.  (Ket/-No.)  §§  212,  293. 

23  BRYAN  v.  BERNHEIMER,  181  U.  S.  188,  21  Sup.  Ct.  557,  45  L. 
Ed.  814;    In  re  Thompson  (D.  C.)  122  Fed.  174;    Id.,  128  Fed.  575, 
63  C.  C.  A.  217.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  116,  212, 
293. 

24  GLENNY  v.  LANGDON,  98  U.  S.  20,  25  L.  Ed.  43;    Bankr.  Act 
July    1,  1898,  c.  541,  §    70e,  30    Stat.  565    (U.   S.  Comp.  St.  1901,  p. 

3452) ;   In  re  Hurst  (D.  C.)  188  Fed.  707,  709.    See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  209;    Cent.  Dig.  §  318. 

2  5  Cox  v.  Wall  (D.  C.)  99  Fed.  546;  Wall  v.  Cox,  101  Fed.  403, 
41  C.  C.  A.  408;  Id.,  181  U.  S.  244,  21  Sup.  Ct.  642,  45  L.  Ed.  845 
(although  the  decision  of  the  lower  court  was  reversed  in  the  Su- 
preme Court  on  the  question  of  jurisdiction  of  the  federal  courts,  it 
was  not  reversed  on  the  question  of  the  remedy) ;  Allen  v.  Massey, 
17  Wall.  351,  21  L.  Ed.  542 ;  Harmanson  v.  Bain,  Fed.  Cas.  No.  6,072 ; 
Johnson  v.  Hanley,  Hove  Co.  (D.  C.)  188  Fed.  752.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  209;  Cent.  Dig.  §  318. 


§  59)  TRUSTEE'S  DUTIES  OF  ADMINISTRATION  155 

Under  section  23  of  the  original  act,  it  is  settled  by  re- 
peated decisions  in  the  United  States  Supreme  Court  that 
the  federal  courts  did  not  have  jurisdiction  over  such  suits, 
unless  they  would  have  had  jurisdiction  of  the  contro- 
versy in  case  bankruptcy  proceedings  had  not  been  in- 
stituted, and  the  controversy  had  been  between  the  bank- 
rupt and  adverse  claimants.26 

The  effect  of  these  decisions  was  to  take  from  the  fed- 
eral courts  all  but  their  mere  administrative  jurisdiction, 
and  to  relegate  to  the  state  courts  the  most  important  class 
of  controversies  which  arise  under  the  bankrupt  act.  The 
amendment  of  February  5,  1903,  was  intended  to  restore 
this  jurisdiction  to  the  federal  courts.  It  amended  section 
23b  to  read  as  follows,  the  added  portion  being  in  italics : 
"Suits  by  the  trustee  shall  only  be  brought  or  prosecuted 
in  the  courts  where  the  bankrupt  whose  estate  is  being  ad- 
ministered by  such  trustee  might  have  brought  or  prose- 
cuted them  if  proceedings  in  bankruptcy  had  not  been  in- 
stituted, unless  by  consent  of  the  proposed  defendant,  except 
suits  for  the  recovery  of  property  under  section  60,  subdivi- 
sion 'b'  and  section  67,  subdivision  'e.'"  The  act  of  June 
25,  1910,  further  amended  this  by  adding  at  the  end  the 
words  "and  section  70,  subdivision  'e.'  " 

It  also  added  to  section  60,  par.  "b"  (the  section  avoid- 
ing illegal  preferences),  to  section  67e  (the  section  avoid- 
ing conveyances  made  to  hinder,  delay,  and  defraud),  and 
to  section  70e  (the  section  authorizing  the  trustee  to  avoid 
illegal  transfers)  the  following  words:  "For  the  purpose 
of  such  recovery  any  court  of  bankruptcy,  as  hereinbefore 
defined,  and  any  state  court  which  would  have  had  juris- 
diction if  bankruptcy  had  not  intervened,  shall  have  con- 
current jurisdiction." 

ze  Bardes  v.  First  Nat.  Bank,  178  U.  S.  524,  20  Sup.  Ct  1000,  44  L. 
Ed.  1175;  Jaquith  v.  Rowley,  188  U.  S.  620,  23  Sup.  Ct  369,  47  L. 
Ed.  620.  See  "Bankruptcy,"  Dec.  Dig.  (Key-~Ko.)  §§  210,  211;  Cent. 
Dig.  §§  321-323. 


156  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

Under  section  1,  subd.  8,  courts  of  bankruptcy  are  de- 
fined as  including  the  district  courts  of  the  United  States, 
and  the  territories,  the  supreme  court  of  the  District  of 
Columbia,  and  the  United  States  courts  of  the  Indian  Ter- 
ritory and  of  Alaska.  Hence,  under  this  amendment,  these 
federal  courts  would  have  concurrent  jurisdiction  with  the 
state  courts  over  such  controversies.  But  in  a  case  aris- 
ing prior  to  the  amendment  of  June  25,  1910,  it  was  held 
that  a  suit  by  a  trustee  to  set  aside  a  fraudulent  transfer 
of  a  bankrupt's  property  more  than  four  months  before 
the  filing  of  the  petition  could  not  be  sustained  in  the  fed- 
eral court  unless  the  defendant  consented;  because  such 
a  suit  would  not  fall  under  either  section  60b  or  section 
67e,  but  only  under  section  70e,  which  was  not  then  ex- 
cepted.27  The  addition  made  by  the  act  of  June  25,  1910, 
though  made  before  this  decision,  seems  to  remedy  this 
difficulty. 

These  amendments  however  apply  only  to  the  cases 
therein  named,  that  is,  illegal  preferences  under  section 
60b,  conveyances  to  hinder,  delay  and  defraud  under  sec- 
tion 67e,  and  illegal  transfers  under  section  70e.  They  do 
not  apply  to  ordinary  controversies  not  included  in  either 
of  these  classes.28 

In  a  suit  by  the  trustee  to  set  aside  an  alleged  illegal 
transfer,  the  bankrupt  is  not  a  necessary  party,  as  he  no 
longer  has  any  interest  in  the  result.29 

27  Wood  v.  A.  Wilbert's  Sons  Shingle  &  Lumber  Co.,  226  U.  S.  384, 
33  Sup.  Ct.  125,  57  L.  Ed.  .    See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §§  210,  292,  293. 

28  Harris  v.  First  Nat.  Bank  of  Mt.  Pleasant,  Texas,  216  U.  S. 
382,  30  Sup.  Ct.  296,  54  L.  Ed.  528.     See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  293. 

29  Buffington  v.  Harvey,  95  U.  S.  99,  24  L.  Ed.  381.    See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  299;   Cent.  Dig   §  448. 


§  60)          TRUSTEE'S  DUTIES  OF  ADMINISTRATION  157 

SAME— THE  CIRCUMSTANCES  AVOIDING  AN  AL- 
LEGED ILLEGAL  TRANSFER 

60.  The  circumstances  which  will  avoid  an  alleged  illegal 
transfer  are 

(1)  that  the  bankrupt  must  be  insolvent,  and 

(2)  that  the  party  benefited  must  have  had  reasonable 

cause  to  believe  that  the  bankrupt  was  insolvent, 
and  that  he  intended  to  violate  the  provisions  of 
the  act. 

Under  sections  60  and  67,  a  suit  to  avoid  an  illegal  pref- 
erence is  not  sustainable  unless  the  bankrupt  is  insolvent, 
and  unless  the  person  receiving  it  or  to  be  benefited  there- 
by, or  his  agent  acting  therein,  shall  have  had  reasonable 
cause  to  believe  that  it  was  intended  thereby  to  give  a 
preference,  or,  in  the  case  of  liens,  that  the  party  had  rea- 
sonable cause  to  believe  that  the  defendant  was  insolvent 
and  in  contemplation  of  bankruptcy,  or  that  the  lien  was 
sought  and  permitted  in  fraud  of  the  provisions  of  the  act. 
This  applies  simply  to  these  two  methods  of  creating  an 
illegal  preference.  As  to  suits  to  set  aside  a  conveyance 
with  intent  to  hinder,  delay,  or  defraud  creditors,  based 
on  statutes  similar  to  the  statute  of  13  Elizabeth,  they  are 
void,  except  as  to  purchasers  in  good  faith,  and  for  present, 
fair  consideration. 

In  reference  to  preferences,  therefore,  two  requisites 
must  concur  before  the  trustee  can  recover:  First,  the 
bankrupt  must  be  insolvent;  and,  second,  the  transferee 
must  have  had  reasonable  cause  to  believe  he  intended  to 
give  a  preference,  which  involves  reasonable  cause  to  be- 
lieve that  he  was  insolvent ;  or,  as  to  liens,  that  he  was  in- 
solvent and  in  contemplation  of  bankruptcy,  or  that  such 
lien  was  sought  and  permitted  in  fraud  of  the  provisions 
of  the  act.  Substantially,  therefore,  the  bankrupt  must, 
in  the  first  place,  be  insolvent;  and,  in  the  second  place, 


158  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

the  party  benefited  must  have  reasonable  cause  to  believe 
that  he  was  insolvent,  and  that  he  intended  to  violate  the 
provisions  of  the  act.30 


SAME— SAME— INSOLVENCY 

61.  A  party  is  deemed  insolvent,  under  the  provisions  of 
the  first  section  of  the  act  whenever  the  aggre- 
gate of  his  property  exclusive  of  any  property 
which  he  may  have  conveyed,  transferred,  con- 
cealed, or  removed,  or  permitted  to  be  concealed, 
or  removed,  with  intent  to  defraud,  hinder,  or  de- 
lay his  creditors,  shall  not,  at  a  fair  valuation,  be 
sufficient  in  amount  to  pay  his  debts. 

This  marks  a  radical  distinction  between  the  present  act 
and  the  act  of  1867.  Under  the  latter  act  a  party  was  in- 
solvent when  he  was  unable  to  meet  his  debts  as  they  ac- 
crued. Under  the  present  act,  if  his  property  is  sufficient 
to  pay  his  debts,  he  is  solvent,  though  he  may  go  to  pro- 
test and  fail  to  provide  for  their  payment.  This  is  true 
even  as  to  the  bankrupt  himself,  in  passing  upon  the  ques- 
tion whether  he  has  committed  those  acts  of  bankruptc)r 
which  involve  insolvency  as  an  essential  element.31 

This  meaning  of  insolvency  is  so  different  from  its  usual 
meaning  in  the  law  that  even  the  appointment  of  a  receiv- 
er on  the  ground  of  insolvency  under  a  state  statute,  where 
the  word  has  its  old  meaning,  does  not  prove  insolvency 
under  the  bankrupt  act  with  its  present  meaning.  If  a  fair 
estimate  shows  an  excess  of  assets  over  liabilities,  the 
bankrupt  is  not  insolvent.32 

so  Tumlin  v.  Bryan,  165  Fed.  166,  91  C.  C.  A.  200,  21  L.  R.  A.  (N. 
S.)  960;  In  re  The  Leader  (D.  C.)  190  Fed.  624.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  160,  166;  Cent.  Dig.  §§  249-258. 

si  In  re  Rogers'  Milling  Co.  (D.  C.)  102  Fed.  687.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  160;  Cent.  Dig.  §  249. 

32  in  re  Doscher  (D.  C.)  120  Fed.  408.  This  is  changed  by  the 
amendment  of  February  5,  1903,  which  makes  the  appointment  of  a 


§  61)          TRUSTEE'S  DUTIES  OF  ADMINISTRATION  159 

Nor  does  any  presumption  of  the  existence  of  insolvency 
arise  from  the  making  of  an  adjudication  in  bankruptcy, 
nor  from  the  want  of  ready  money  to  pay  debts.33 

In  determining  the  value  of  property,  it  is  estimated  on 
the  theory  of  a  fair  appraisement,  and  not  necessarily  on 
the  price  that  a  purchaser  would  give  who  tried  to  take 
advantage  of  the  bankrupt's  situation.84 

A  partnership  is  solvent  if  the  individual  and  firm  as- 
sets together  exceed  the  liabilities.36 

But  though  the  bankrupt  is  insolvent,  the  transaction 
will  still  hold,  unless  the  party  benefited  had  reasonable 
cause  to  believe  that  he  was  insolvent,  and  that  he  intend- 
ed to  violate  the  act.  Here,  too,  the  decisions  under  the 
former  act  must  be  used  with  caution.  Where  insolvency 
consists  in  an  inability  to  meet  obligations  as  they  mature, 
many  circumstances  of  suspicion  might  be  brought  home 
to  the  party  benefited  that  would  be  entitled  to  little 
weight  under  the  meaning  of  the  word  in  the  present  stat- 
ute. Even  under  the  former  act  mere  suspicion  that  the 
bankrupt  was  in  trouble,  or  knowledge  that  he  was  slow 
in  paying  his  debts,  was  not  sufficient  to  bring  such  knowl- 
edge home  to  the  party  benefited.  Under  the  present  act 
a  stronger  train  of  circumstances  would  be  necessary,  for, 


receiver  on  the  greiind  of  insolvency  an  act  of  bankruptcy.  In  pro- 
ceedings of  this  character  the  word  may  have  a  much  wider  mean- 
ing than  under  the  bankrupt  act.  Cincinnati  Equipment  Co.  v.  Deg- 
nan,  184  Fed.  834,  107  C.  C.  A.  158.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  160;  Cent.  Dig.  §  249. 

ss  in  re  Chappell  (D.  C.)  113  Fed.  545.  But  where  the  fact  of  in- 
solvency is  one  of  the  issues  necessarily  involved  in  making  the  ad- 
judication, its  existence  is  conclusively  established  by  the  adjudica- 
tion and  cannot  be  collaterally  questioned.  Cook  v.  Robinson,  194 
Fed.  785,  114  C.  C.  A.  505.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §§ 
100,  160. 

s  *  In  re  Hines  (D.  C.)  144  Fed.  142;  Rutland  County  Nat.  Bank 
v.  Graves  (D.  C.)  156  Fed.  168.  See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §§  54,  160;  Cent.  Dig.  §§  54,  84,  85,  249. 

ss  Francis  v.  McNeal,  186  Fed.  481,  108  C.  C.  A.  549.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §§  54,  160;  Cent.  Dig.  §§  54,  84,  85,  249. 


160  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

as  has  been  seen  above,  a  party  embarrassed  might  go  to 
protest,  and  still  be  solvent.  An  interesting  discussion  of 
the  meaning  of  insolvency  under  the  present  act,  as  com- 
pared with  the  old  act,  is  contained  in  Re  Eggert,36  though 
that  decision  apparently  gives  more  weight  to  the  cases 
under  the  old  act  than  they  ought  to  have,  and  does  not 
sufficiently  emphasize  the  difference  between  the  two 
acts.  So,  too,  the  knowledge  by  the  party  benefited  of 
the  existence  of  certain  indebtedness  on  the  part  of  the 
bankrupt  is  not  of  itself  sufficient,  for  it  must  be  remem- 
bered that  the  interests  of  the  commercial  world  demand 
freedom  of  alienation  just  as  much  as  they  demand  the 
enforcement  of  the  provisions  of  the  bankrupt  act.37 

THE   TRUSTEE'S   INTEREST   IN   INSURANCE 
POLICIES 

62.  The  trustee  is  entitled  to  any  insurance  policy  payable 
to  the  bankrupt  which  has  a  cash  surrender  or 
an  actual  value,  unless  the  bankrupt  chooses  to 
redeem  such  policy. 

Under  section  70  the  trustee  is  entitled  to  any  insur- 
ance policy  in  the  name  of  the  bankrupt  which  has  a  cash 
surrender  value  and  is  payable  to  the  bankrupt,  unless 
the  bankrupt  chooses  to  redeem  the  policy.  But  this  only 
applies  to  policies  that  have  a  cash  surrender  value,  though 
the  decisions  on  the  point  were  for  a  long  time  in  conflict.88 

36  (D.  C.)  98  Fed.  843,  Id.,  102  Fed.  735,  43  C.  C.  A.  1.    See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §§  54,  160,  166. 

37  As  to  the  test  of  "reasonable  cause  to  believe,"  see  First  Nat. 
Bank  of  Philadelphia  v.  Abbott,  165  Fed.  852,  91  C.  C.  A.  538 ;   Stern 
v.  Paper  (D.  C.)  183  Fed.  228.    See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §  166;  Cent.  Dig.  §§  250-258. 

ss  Hiscock  v.  Mertens,  205  U.  S.  202,  27  Sup.  Ct.  488,  51  L.  Ed.  771; 

Burlingham  v.  Grouse,  228  U.  S.  459,  33  Sup.  Ct.  564,  57  L.  Ed. . 

This  section  of  the  act  does  not  apply  in  states  which  make  an  in- 
surance policy  exempt  from  claims  of  creditors.  In  such  case  the 


§  64)  TRUSTEE'S  POWER  OF  SALE  161 

THE  TRUSTEE'S   INTEREST  IN   RIGHTS  OF  AC- 
TION 

63.  The  trustee  is  entitled  to  all  rights  of  action  arising 

upon  contracts,  or  from  the  unlawful  taking  or 
detention  of,  or  injury  to,  the  bankrupt's  property. 

The  seventieth  section  of  the  act  provides  that  the  trus- 
tee shall  be  entitled  to  all  rights  of  action  arising  upon 
contracts,  or  from  the  unlawful  taking  or  detention  of,  or 
injury  to,  the  bankrupt's  property.  Under  this  provision 
the  trustee  does  not  become  entitled  to  the  bankrupt's 
right  of  action  for  torts  to  the  person — for  instance,  to 
rights  of  action  for  slander  or  malicious  prosecution.39 

THE  TRUSTEE'S  POWER  OF  SALE 

64.  The  trustee  has  the  power  to  hold  a  sale  after  due  no- 

tice to  all  parties  in  interest,  which,  however,  is 
subject  to  confirmation  by  the  court.  The  sale 
may  be  a  public  or  private  one,  according  to  cir- 
cumstances. 

This  power  is  necessarily  implied  in  the  right  given  by 
the  forty-seventh  section  of  the  act  to  collect  and  reduce  to 
money  the  property  of  the  estates  for  which  they  are  trus- 

bankrupt  can  retain  them  without  being  required  to  pay  the  cash 
surrender  value  to  the  trustee.  Holden  v.  Stratton,  198  U.  S.  202, 
25  Sup.  Ct.  656,  49  L.  Ed.  1018 ;  In  re  Johnson  (D.  C.)  176  Fed.  591. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  396;  Cent.  Dig.  §§  659-668. 
39  Dillard  v.  Collins,  25  Grat  (Va.)  343;  In  re  Haensell  (D.  C.)  91 
Fed.  355.  An  action  of  deceit  based  on  false  representations  as  to 
goods  is  an  injury  to  property  and  passes  to  the  trustee.  In  re 
Gay  (D.  C.)  182  Fed.  260.  So  an  action  to  recover  usurious  interest. 
First  Nat.  Bank  v.  Lasater,  196  U.  S.  115,  25  Sup.  Ct.  206,  49  L.  Ed. 
408.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  145;  Cent.  Dig.  §§  205, 
230-234. 

HUGHES  FED.PB.(2o  ED.)— 11 


162  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

tees,  under  the  direction  of  the  court.  Under  the  fifty- 
eighth  section,  creditors  are  entitled  to  notice  of  all  pro- 
posed sales  of  property;  and,  after  the  property  is  sold,  the 
court  has  a  general  supervision  over  the  question  whether 
to  confirm  the  sale  or  not,  and  exercises  it  under  the  or- 
dinary principles  governing  judicial  sales,  but  will  not  set 
aside  a  sale  merely  because  a  somewhat  better  price  could 
be  obtained,  though  it  will  set  it  aside  if  improperly  con- 
ducted, though  the  purchaser  was  not  himself  guilty  of 
any  impropriety.40 

The  eighteenth  bankruptcy  order  41  requires  sales  to  be 
at  public  auction,  unless  otherwise  ordered,  but  permits 
private  sales  under  certain  circumstances. 

There  is  no  express  provision  in  the  present  act  authoriz- 
ing the  sale  of  property  free  of  incumbrances.  This  was  a 
common  practice  under  the  former  act,  and  the  courts 
deduce  the  right  to  order  such  sales  under  the  present  act 
from  the  necessity  for  prompt  action,  and  the  general  pow- 
ers conferred  upon  them  by  the  act.  A  sale  may  be  or- 
dered free  from  incumbrances  even  when  it  is  not  certain 
that  there  is  no  equity  of  redemption.42 

But  there  must  be  some  probability  that  it  is  to  the  in- 
terest of  the  general  creditors,  before  such  a  sale  will  be 
ordered.43 

Such  a  sale,  however,  cannot  be  ordered  without  giving 


40  in  re  Ethier  (D.  C.)  118  Fed.  107;  In  re  Belden  (D.  C.)  120  Fed. 
524 ;  In  re  Shea  (D.  C.)  122  Fed.  742.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  269;  Cent.  Dig.  §  370. 

41 172  U.  S.  659,  18  Sup.  Ct  vl,  43  L.  Ed.  1191;  post,  p.  460.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  262;  Cent.  Dig.  §§  S6S-S65. 

4  2  In  re  Union  Trnst  Co.,  122  Fed,  937,  59  C.  C.  A.  461;  In  re 
Torchia  (D.  C.)  185  Fed.  576.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.) 
§  258;  Cent.  Dig.  §§  S58-362. 

4 s  in  re  Pittelkow  (D.  O.)  92  Fed.  901;  Southern  Loan  &  Trust 
Co.  v.  Benbow  (D.  C.)  96  Fed.  514;  In  re  Shaeffer  (D.  C.)  105  Fed. 
352;  In  re  Roger  Brown  &  Co.,  196  Fed.  758,  116  C.  C.  A.  386;  In 
re  Fayettevllle  Wagon-Wood  &  Lumber  Co.  (D.  C.)  197  Fed.  580.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  257. 


§  65)          TRUSTEE'S  DUTIES  AS  TO  DISTRIBUTION  163 

notice  to  all  parties  in  interest,  and  giving  them  a  day  in 
court.44     A  sale  may  be  ordered  by  the  referee.45 


THE  TRUSTEE'S   DUTIES  AS  TO  DISTRIBUTION 
OF  THE  ESTATE 

65.  It  is  the  trustee's  duty  to  distribute  the  estate  in  ac- 
cordance with,  and  observance  of,  certain  priori- 
ties prescribed  by  law. 

In  the  distribution,  certain  priorities  are  prescribed  by 
the  sixty-fourth  section  of  the  act.  The  trustee  must,  of 
course,  observe  them.  He  must  pay  all  taxes  due  to  the 
United  States  or  state,  or  any  municipal  subdivision  there- 
of, before  he  can  pay  any  dividend,  including  taxes  after 
his  qualification.46 

Debts  Due  the  United  States 

It  was  long  a  question,  under  the  present  act,  whether 
debts  due  to  the  United  States  which  are  not  taxes  are  a 
prior  claim.  Under  the  act  of  1867  there  was  an  express 
provision  giving-  them  priority.47  The  fact  that  this  pro- 
vision is  omitted  in  the  present  act,  and  only  taxes  due 
the  United  States  mentioned  as  prior,  might  be  taken  as 

44  Factors'  &  Traders'  Ins.  Co.  v.  Murphy,  111  U.  S.  738,  4  Sup. 
Ct.  679,  28  L.  Ed.  582 ;  In  re  Plttelkow  (D.  C.)  92  Fed.  901 ;  In  re 
Kohl-Hepp  Brick  Co.,  176  Fed.  340,  100  C.  C.  A.  260.  But  if  he 
knows  of  the  sale  and  does  not  object,  he  cannot  set  up  want  of  for- 
mal notice.  In  re  Caldwell  (D.  C.)  178  Fed.  377.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  261;  Cent.  Dig.  §§  361,  362. 

4  5  in  re  Sanborn  (D.  C.)  96  Fed.  551;  In  re  "Waterloo  Organ  Co. 
(D.  C.)  118  Fed.  904 ;  In  re  Miners'  Brewing  Co.  (D.  C.)  162  Fed.  327. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  262. 

46  S  warts  v.  Hammer,  194  U.   S.  441,  24  Sup.  Ct.  695,  48  L.  Ed. 
1060.    And  he  must  not  wait  for  the  tax  officials  to  present  the  bills. 
In  re  Weissman  (D.  C.)  178  Fed.  115.    Water  rents  under  municipal 
ordinances  are  taxes.    In  re  Industrial  Cold  Storage  &  Ice  Co.  (D.  C.) 
163  Fed.  390.     See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  346;    Cent. 
Dig.  §  535. 

47  Lewis  v.  U.  S.,  92  U.  S.  618,  23  L.  Ed.  513.     See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  345,  349;    Cent.  Dig.  §  533. 


164  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

some  evidence  of  an  intent  on  the  part  of  Congress  to 
abolish  that  priority;  but,  on  the  other  hand,  the  bankrupt 
law  contains  no  section  to  the  effect  that  its  provisions  are 
intended  to  be  exclusive,  and  contains  no  clause  of  repeal 
of  any  other  acts.  Hence  section  3466  of  the  Revised 
Statutes,48  which  gives  priority  to  the  United  States  in 
the  event  of  winding  up  an  insolvent  estate,  is  not  affected 
by  the  bankrupt  act.  The  ordinary  principles  of  construc- 
tion, which  lean  against  excluding  the  sovereign  from  the 
benefits  of  statutes,  would  be  applicable,  and  tend  to 
strengthen  the  claim  of  the  government  to  priority. 
Hence,  even  if  the  government  did  not  prove  its  claim  at 
all,  no  laches  could  be  imputed  to  it,  and  it  would  be  the 
duty  of  the  trustee,  if  he  knew  of  the  claim,  to  pay  it. 
This  priority  of  the  government,  however,  is  not  in  the 
nature  of  a  lien,  and,  if  the  trustee  distributed  the  estate 
without  knowledge  of  a  governmental  claim  against  the 
bankrupt,  he  could  not  be  held  accountable  for  doing  so.*' 

Under  the  first  paragraph  of  the  sixty-fourth  section, 
the  trustee  must  pay  taxes  even  upon  the  property  of  the 
bankrupt  exempt  as  a  homestead.50 

And  there  is  no  obligation  upon  the  governmental  organ- 
ization to  whom  the  taxes  are  due  to  prove  its  claim  for 
taxes,  but  it  is  the  duty  of  the  trustee  to  pay  them  without 
such  proof.51 

48  U.  S.  Comp.  St.  1901,  p.  2314. 

4»  Since  the  above  was  written  the  question  of  priority  as  between 
an  ordinary  debt  due  the  United  States  and  labor  claims  arose  in 
Title  Guaranty  &  Surety  Co.  v.  Guarantee  Title  &  Trust  Co.,  174 
Fed.  385,  98  C.  C.  A.  603.  It  was  decided  in  favor  of  the  priority  of 
the  United  States.  On  appeal  the  decision  was  reversed.  Guarantee 
Title  &  Trust  Co.  v.  Title  Guaranty  &  Surety  Co.,  224  U.  S.  152,  32 
Sup.  Ct.  457,  56  L.  Ed.  706.  But  the  opinion  simply  passes  on  the 
question  of  priority  as  to  labor  claims,  and  settles  nothing  as  to  oth- 
ers. See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  349;  Cent.  Dig.  §  533. 

so  in  re  Tilden  (D.  C.)  91  Fed.  500.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  346;  Cent.  Dig.  §  535. 

si  In  re  Prince  &  Walter  (D.  C.)  131  Fed.  546.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  327. 


§  66)  TRUSTEE'S  DUTIES  AS  TO  EXEMPTIONS  165 

Priority  of  Wages 

Another  priority  given  by  the  sixty-fourth  section  is 
wages  due  to  workmen,  clerks,  or  servants,  which  have 
been  earned  within  three  months  before  the  date  of  the 
commencement  of  the  proceedings,  not  to  exceed  $300  to 
each  claimant.  This  provision  is  intended  to  cover  the  sub- 
ject of  priority  of  wages.  The  clerk  or  workman  cannot 
claim  priority  for  three  months  under  this  provision,  and 
then  for  a  greater  time  where  the  state  law  gives  him  a 
greater  protection,  even  under  the  fifth  subdivision,  giv- 
ing priority  to  debts  owing  to  any  person  who  by  the  laws 
of  the  states  or  the  United  States  is  entitled  to  priority. 
This  last  subdivision  is  not  intended  to  extend  the  preced- 
ing subdivision  relating  to  wages.52 

This  preference  to  wages  does  not  displace  existing 
liens.53 

This  provision  is  intended  to  cover  wages  which  have 
accrued  in  three  months,  whether  they  are  actually  due  and 
payable  or  not.54 

THE  TRUSTEE'S  DUTIES  AS  TO  THE  BANK- 
RUPT'S EXEMPTIONS 

66.  It  is  the  trustee's  duty  to  set  apart  all  exemptions  in 
favor  of  the  bankrupt  allowed  by  the  state  or  fed- 
eral law.  It  is  then  within  the  province  of  the 
bankrupt  court  to  allow  or  disallow  said  exemp- 
tions. 

s  2  in  re  Shaw  (D.  C.)  109  Fed.  782;  In  re  Slomka,  122  Fed.  630, 
58  C.  C.  A.  322;  In  re  McDavid  Lumber  Co.  (D.  C.)  190  Fed.  97; 
In  re  H.  O.  Roberts  Co.  (D.  C.)  193  Fed.  294.  See  "Bankruptcy," 
Dec.  Dig.  (Key-^o.)  §  31,8;  Cent.  Dig.  §  536. 

53  in  re  Proudfoot  (C.  C.)  173  Fed.  733;  In  re  Yoke  Vitrified  Brick 
Co.  (D.  C.)  180  Fed.  235.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
S-fS;  Cent.  Dig.  §  536. 

s*  In  re  B.  H.  Gladding  Co.  (D.  C.)  120  Fed.  709.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  S48;  Cent.  Dig.  §  536. 


166  DISTRICT   COURT — BANKRUPTCY  (Ch.  7 

The  bankrupt  is  entitled,  under  the  sixth  section,  to  the 
exemptions  allowed  by  the  state  laws;  and,  under  the 
forty-seventh  section,  it  is  the  trustee's  duty  to  set  the  ex- 
emption apart  and  report  his  action  to  the  court.  And 
under  the  eleventh  subdivision  of  the  second  section,  the 
court  has  power  to  determine  all  claims  of  bankrupts  to 
their  exemptions.  Under  this  provision  the  court  has  pow- 
er to  consider  the  bankrupt's  claim  to  exemption  up  to  the 
point  when  it  is  finally  set  aside  to  him.  Prior  to  that  it 
has  the  right  to  say  whether  the  bankrupt  is  entitled  to 
certain  property  as  exempt,  or  not.  For  instance,  where 
the  state  law  provided  that  the  bankrupt  should  not  claim 
property  as  exempt  against  the  purchase  price,  and  the 
bankrupt  set  up  a  claim  to  such  property,  and  the  creditors 
came  into  the  bankrupt  court  to  resist  the  claim,  the  court 
has  the  power  to  pass  upon  it.55  In  fact,  the  bankrupt 
court  has  exclusive  jurisdiction  to  determine  the  claim  of 
the  bankrupt  to  an  exemption.56  But  when  the  exemption 
is  once  set  aside  to  the  bankrupt,  it  is  no  longer  a  part  of 
the  estate  under  the  jurisdiction  of  the  court,  and  then  the 
court  has  no  jurisdiction  in  controversies  concerning  it.57 
It  cannot  consider  disputes  in  relation  to  it  between  the 
bankrupt  and  creditors  who  claim  to  hold  obligations  waiv- 
ing it.58 

55  in  re  Boyd  (D.  C.)  120  Fed.  999.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §§  293,  3.96. 

se  McGahan  v.  Anderson,  113  Fed.  115,  51  C.  C.  A.  92 ;  In  re  Mc- 
Crary  (D.  C.)  169  Fed.  485.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.) 
§§  293,  396. 

5  7  in  re  Black  (D.  C.)  104  Fed.  289;  In  re  McKissac  (D.  C.)  171 
Fed.  259.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  293.  396. 

ss  LOCKWOOD  v.  EXCHANGE  BANK,  190  U.  S.  294,  23  Sup.  Ct. 
751,  47  L.  Ed.  1061.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  396, 
399. 


§   67)  DISTRICT  COUET — BANKRUPTCY  167 

CHAPTER  VIII 
DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued) 

67.  The  Discharge — Application  for. 

68.  Same — Method  of  Opposing. 

69.  Same — Burden  of  Proof. 

70.  Grounds  of  Opposition  to  Discharge. 

71.  The  Debts  Not  Affected  by  a  Discharge. 

72.  Revocation  of  a  Discharge. 

THE  DISCHARGE— APPLICATION  FOR 

67.  The  discharge  is  the  release  of  the  bankrupt  from  all  of 
his  indebtedness  which  the  bankruptcy  can  affect. 
Application  therefor  may  be  made  within  certain 
limits  as  to  time ;  and,  upon  notice  to  all  parties  in 
interest;  and  after  a  hearing  granted  the  applicant 
and  those  who  oppose  the  discharge,  the  same  is 
granted  or  refused  by  the  court. 

The  procedure  relating  to  a  discharge  is  regulated  by 
section  14  of  the  act,  as  amended  by  the  acts  of  February 
5,  1903,  and  June  25,  1910  (U.  S.  Comp.  St.  Supp.  1911,  p. 
1496).  The  application  cannot  be  made  until  one  month 
after  the  adjudication,  and  must  be  made  within  twelve 
months  after  it,  though  the  judge  may,  under  certain  cir- 
cumstances, allow  six  additional  months.1 

Under  section  58  of  the  original  act  the  creditors  are  en- 
titled to  ten  days'  notice,  by  mail,  of  any  hearing  upon  the 
application  for  the  discharge.  This  notice  must  be  by  mail, 
«K,nd  cannot  be  by  publication — certainly  not  unless  it  is 

i  In  re  Chase  (D.  C.)  186  Fed.  408 ;  In  re  Bacon,  193  Fed.  34,  113 
C.  C.  A.  358.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  410;  Cent. 
Dig.  §  694- 


168  DISTRICT  COURT — BANKRUPTCY         .  (Ch.  8 

shown  that  the  address  of  the  creditor  cannot  be  obtained.2 
The  amendment  of  June  25,  1910,  has  enlarged  the  notice 
required  in  case  of  discharge  to  thirty  days. 

Corporations  as  well  as  individuals  may  ask  for  a  dis- 
charge.3 

Where  a  partnership  has  filed  a  petition  in  bankruptcy, 
the  individual  partners  may  apply  separately  for  a  dis- 
charge, and  need  not  join  in  such  application.4 

A  bankrupt  who  applied  for  a  discharge  under  the  act  of 
1867  and  was  refused  is  not  thereby  precluded  from  apply- 
ing under  the  act  of  1898.  The  two  acts  are  entirely  dis- 
similar, and  adjudications  under  the  first  would  not  be  res 
judicata  under  the  second.  And  this  second  application 
may  be  for  a  discharge  from  debts  existing  under  the  old 
act  as  well.5 

The  better  opinion  is  that  a  bankrupt  can  apply  for  a 
discharge  but  once.  He  is  then  given  his  day  in  court  and 
opportunity  to  show  his  right  to  a  discharge,  and  he  can- 
not expect  to  relitigate  the  question.6 

The  parties  entitled  to  oppose  a  discharge  in  addition  to 
the  trustee  are,  in  the  language  of  the  act,  "parties  in  in- 
terest." This  includes  a  creditor  whose  name  is  in  the 
bankrupt's  list  of  creditors,  although  he  has  not  proved  his 
debt.7 

2  In  re  Dvorak  (D.  C.)  107  Fed.  76.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  $12;  Cent.  Dig.  §§  696,  697. 

s  In  re  Marshall  Paper  Co.,  102  Fed.  872,  43  C.  C.  A.  38.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  404. 

*  In  re  Meyers  (D.  C.)  97  Fed.  757.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  404- 

e  In  re  Herrman  (D.  C.)  102  Fed.  753 ;  Id.,  106  Fed.  987,  46  C.  C. 
A.  77.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  404- 

« In  re  Fiegenbaum,  121  Fed.  69,  57  C.  C.  A.  409 ;  In  re  Silverraan, 
157  Fed.  675,  85  C.  C.  A.  224;  In  re  Pullian  (D.  C.)  171  Fed.  595. 
Contra,  In  re  Claff  (D.  C.)  Ill  Fed.  506.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  404- 

i  In  re  Conroy  (D.  C.)  134  Fed.  764 ;  In  re  Harr  (D.  C.)  143  Fed. 
421.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §§  709- 
711. 


§   68)  THE   DISCHARGE  169 

A  creditor  who  has  appeared  in  a  bankruptcy  proceeding 
cannot  oppose  the  discharge  on  the  ground  that  the  peti- 
tion for  bankruptcy  was  not  filed  in  the  right  district.  By 
appearing  he  waives  any  objections  which  merely  affect 
the  question  of  the  personal  jurisdiction  of  the  court  over 
the  bankrupt.8 


SAME— METHOD  OF  OPPOSING 

68.  The  method  of  opposing  a  discharge  is  by  specifica- 
tions filed  by  parties  in  interest,  setting  out  the 
grounds  of  opposition  with  reasonable  particulari- 
ty, and  giving  such  facts  as  will  enable  the  bank- 
rupt to  defend  himself.  This  raises  the  issues  of 
law  and  fact,  the  statements  of  the  specifications 
being  presumed  to  be  denied  by  the  bankrupt,  and 
no  further  step  is  required  of  the  bankrupt.  He 
can  raise  legal  questions  by  motion  to  dismiss. 

The  act  requires  the  judge  to  hear  the  application  for  a 
discharge,  and  such  proofs  and  pleas  as  may  be  made  in 
opposition  thereto  by  the  trustee  or  other  parties  in  inter- 
est. Under  this  language  the  question  must  be  raised  by 
formal  specifications  in  opposition.  These  must  set  out  the 
grounds  on  which  the  discharge  is  opposed  with  reasonable 
particularity,  giving  such  necessary  facts  in  connection 
with  the  general  charge  as  will  enable  the  bankrupt  to  de- 
fend himself.  The  party  opposing  cannot  merely  come  in 
and  follow  the  language  of  the  statute  defining  the  grounds 
of  opposition  to  a  bankrupt's  discharge.9 

s  In  re  Clisdell  (D.  C.)  101  Fed.  246;  ante,  p.  94,  note  18,  and  p. 
102,  note  41.  See  "Banlcruptoy,"  Dec.  Dig.  (Key-No.)  §  405;  Cent. 
Dig.  §§  109-711. 

»  In  re  Goodale  (D.  C.)  109  Fed.  783 ;  In  re  Peck  (D.  C.)  120  Fed. 
972;  In  re  Bromley  (D.  C.)  152  Fed.  493.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  413;  Cent.  Dig.  §§  712-727. 


170  DISTRICT   COUBT — BANKRUPTCY  (Ch.  8 

But  though  the  specifications  are  vague  and  indefinite, 
the  bankrupt  cannot  go  to  trial  on  them  in  the  lower  court, 
and  raise  this  objection  to  them  for  the  first  time  in  the 
appellate  court.10 

The  court  may,  in  its  discretion,  allow  the  specifications 
to  be  amended  so  as  to  make  them  more  definite,  but  it  is 
not  apt  to  exercise  this  discretion  in  this  manner  where  the 
creditors  have  been  guilty  of  laches.11 

When  the  specifications  are  filed,  it  is  not  necessary  for 
the  bankrupt  to  join  any  formal  issue  thereon.  As  far  as 
they  raise  questions  of  fact,  they  are  presumed  to  be  denied 
by  the  bankrupt,  and  his  failure  to  file  a  formal  paper  deny- 
ing them  is  not  an  admission  of  their  validity,  and  would 
not  authorize  any  default  decree  against  him.  As  to  ques- 
tions of  law,  he  need  not  file  any  paper  in  the  nature  of  a 
demurrer.  He  can  raise  the  questions  before  the  court  on 
motion  to  dismiss.12 


SAME— BURDEN  OF  PROOF 

69.  The  burden  is  upon  creditors  opposing  a  discharge  to 
prove  the  facts  necessary  to  defeat  it  by  a  pre- 
ponderance of  evidence  clear  and  convincing. 

There  is  some  conflict  of  decision  as  to  the  quantity  of 
evidence  necessary  to  prove  the  ground  alleged  as  opposi- 
tion to  the  discharge.  There  can  be  no  question  that  the 

10  In  re  Osborne,  115  Fed.  1,  52  C.  C.  A.  595.    See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  413,  458. 

11  Id.;    In  re  Glass  (D.  C.)  119  Fed.  509;    In  re  Carley,  117  Fed. 
130,  55  C.  C.  A.  146;    Kentucky  Nat.  Bank  v.  Carley,  121  Fed.  822, 
58  C.  C.  A.  158.    Nor  would  an  amendment  adding  a  new  ground  of 
opposition  be  permitted  after  the  10  days  allowed  by  the  rule  for 
filing  them.    In  re  Johnson  (D.  C.)  192  Fed.  356.    See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  413. 

12  In  re  Logan  (D.  C.)  102  Fed.  876;    In  re  Crist  (D.  C.)  116  Fed. 
1007.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  413. 


§   69)  THE   DISCHARGE  171 

burden  of  proof  in  the  first  instance  is  upon  the  creditor 
opposing  it.  It  has  been  held  in  some  cases  that  a  fair  pre- 
ponderance of  evidence  is  all  that  is  necessary  in  order  to 
sustain  this  burden  of  proof.13  On  the  other  hand,  it  has 
been  held,  on  stronger  reasoning,  that,  although  the  proof 
need  not  be  such  as  to  leave  the  matter  beyond  a  reason- 
able doubt,  it  must  be  more  than  a  mere  preponderance, 
and  must  be  clear  and  convincing.14 

The  grounds  on  which  a  discharge  can  be  opposed  are, 
in  the  main,  grounds  connected  with  the  commission  of  a 
criminal  offense,  or  the  commission  of  some  fraud.  While 
the  proceeding  to  show  that  a  criminal  offense  has  been 
committed  as  a  means  of  defeating  the  discharge  is  not  a 
criminal  proceeding,  it  has  the  effect  of  fastening  the  com- 
mission of  a  crime  upon  the  defendant.  Hence  it  is  not  un- 
reasonable to  expect  proof  beyond  that  required  in  ordi- 
nary civil  suits.  The  release  of  a  debtor  from  a  load  of 
debt,  and  his  restoration  to  the  producing  class  of  the  com- 
munity, are  the  fundamental  reasons  for  the  enactment  of 
the  bankrupt  law,  and  the  presumptions  ought  to  be  in  fa- 
vor of  his  discharge.  Hence,  while  it  might  be  too  heavy 
a  burden  on  the  creditor  to  require  the  amount  of  proof 
necessary  in  criminal  procedure,  it  is  not  putting  too  much 
upon  him  to  require  a  degree  of  proof  equal  to  that  re- 
quired for  the  proof  of  fraud  in  ordinary  civil  proceedings. 

Policy  as  to  Granting  Discharge 

The  policy  of  the  bankrupt  court  is  in  favor  of  granting 
a  discharge.  The  act  contemplates  a  speedy  discharge,  and 
the  court  will  not  permit  creditors  to  unreasonably  delay 

is  In  re  Leslie  (D.  C.)  119  Fed.  406;  In  re  Dauchy  (D.  C.)  122  Fed. 
688.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  414;  Cent.  Dig.  §§ 
720-722. 

i*  In  re  Corn  (D.  C.)  106  Fed.  143;  In  re  Howden  (D.  C.)  Ill  Fed. 
723 ;  Garry  v.  Jefferson  Bank,  186  Fed.  461,  108  C.  C.  A.  439 ;  In  re 
Taylor  (D.  C.)  188  Fed.  479.  See  "Bankruptcy,"  Deo.  Dig.  (Key-Hfo.) 
|  414;  Cent.  Dig.  §§  720-722. 


172  DISTRICT  COURT — BANKRUPTCY  (Ch.  8 

it.    Nor  will  the  court  go  out  of  its  way  to  find  grounds  for 
refusing  it.15 

Collateral  Weight  of  Discharge 

A  discharge  is  a  personal  privilege,  like  the  statute  of 
limitations;  and  therefore,  when  a  creditor  is  sued,  he 
must  plead  his  discharge,  or  judgment  will  go  against  him, 
as  in  any  other  uncontested  case.18 

When  a  discharge  is  pleaded,  the  court  in  which  it  is 
pleaded  must  assume  that  the  proceedings  upon  it  were 
regular,  and  that  proper  notices  were  given.  It  cannot  be 
attacked  collaterally.17 

GROUNDS  OF  OPPOSITION  TO  DISCHARGE 

70.  The  general  grounds  of  opposition  to  a  discharge  are, 
as  prescribed  by  the  statute : 

(1)  Commission  of  offenses  against  the  bankrupt  act.  ; 

(2)  Intentional  destruction  or  concealment  of,  or  failure 

to  keep,  accounts. 

(3)  Obtaining   money   or   property   on   credit   by   false 

statement  in  writing  for  that  purpose. 

(4)  Removal,  destruction,  or  concealment  of  property, 

with  intent  to  hinder,  delay,  or  defraud  creditors, 
within  four  months  previous  to  filing  of  petition. 

(5)  Prior  discharge  in  bankruptcy  within  six  years  in 

voluntary  proceedings. 

IB  In  re  Mudd  (D.  C.)  105  Fed.  348 ;  In  re  Hixon  (D.  C.)  93  Fed. 
440;  Hardie  v.  Swafford  Bros.  Dry  Goods  Co.,  165  Fed.  588,  91  C. 
C.  A.  426,  20  L.  R.  A.  (N.  S.)  785.  See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §§  407,  41o. 

leFowle  v.  Park  (C.  C.)  48  Fed.  789;  In  re  Wesson  (D.  C.)  88 
Fed.  855;  Friedman  v.  Zweifler,  74  Misc.  Rep.  448,  132  N.  Y.  Supp. 
320;  Heelman  v.  Goldstone,  161  Fed.  913,  88  C.  C.  A.  604.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  435;  Cent.  Dig.  §§  824-839. 

1 7  Jarecki  Mf ?.  Co.  v.  McElwaine  (C.  C.)  107  Fed.  249 ;  First  Na- 
tional Bank  v.  Masterson,  29  Okl.  76,  116  Pac.  162.  See  "Bankrupt- 
cy," Dec.  Dig.  (Key-No.)  §  419;  Cent.  Dig.  §§  843-852. 


§   70)  GROUNDS   OF   OPPOSITION   TO   DISCHARGE  173 

(6)  Refusal  to  obey  lawful  order  of,  or  to  answer  any 
material  question  approved  by,  the  court  in  the 
course  of  the  bankruptcy  proceedings. 

These  are  set  out  in  section  14  of  the  act,  par.  "b."  As 
originally  enacted,  it  read  as  follows: 

"(b)  The  judge  shall  hear  the  application  for  a  dis- 
charge, and  such  proofs  and  pleas  as  may  be  made  in  op- 
position thereto  by  parties  in  interest,  at  such  time  as  will 
give  parties  in  interest  a  reasonable  opportunity  to  be  fully 
heard,  and  investigate  the  merits  of  the  application  and 
discharge  the  applicant  unless  he  has  (1)  committed  an  of- 
fense punishable  by  imprisonment  as  herein  provided;  or 
(2)  with  fraudulent  intent  to  conceal  his  true  financial  con- 
dition and  in  contemplation  of  bankruptcy,  destroyed,  con- 
cealed or  failed  to  keep  books  of  account  or  records  from 
which  his  true  condition  might  be  ascertained." 

The  acts  of  February  5,  1903,  and  June  25,  1910,  have 
radically  changed  this  section,  not  only  in  language,  but  by 
the  addition  of  several  grounds  not  contained  in  the  orig- 
inal act,  so  that  it  now  reads  as  follows: 

"(b)  The  judge  shall  hear  the  application  for  a  dis- 
charge, and  such  proofs  and  pleas  as  may  be  made  in  op- 
position thereto  by  the  trustee  or  other  parties  in  interest, 
at  such  time  as  will  give  the  trustee  or  parties  in  interest  a 
reasonable  opportunity  to  be  fully  heard,  and  investigate 
the  merits  of  the  application  and  discharge  the  applicant 
unless  he  has  (1)  committed  an  offense  punishable  by  im- 
prisonment as  herein  provided;  or  (2)  with  intent  to  con- 
ceal his  financial  condition,  destroyed,  concealed  or  failed 
to  keep  books  of  account  or  records  from  which  such  condi- 
tion might  be  ascertained ;  or  (3)  obtained  money  or  prop- 
erty on  credit  upon  a  materially  false  statement  in  writing, 
made  by  him  to  any  person  or  his  representative  lor  the 
purpose  of  obtaining  credit  from  such  person;  or  (4)  at 
any  time  subsequent  to  the  first  day  of  the  four  months  im- 


174  DISTRICT   COURT — BANKRUPTCY  (Ch.  8 

mediately  preceding  the  filing  of  the  petition  transferred, 
removed,  destroyed,  or  concealed,  or  permitted  to  be  re- 
moved, destroyed,  or  concealed,  any  of  his  property,  with  in- 
tent to  hinder,  delay,  or  defraud  his  creditors ;  or  (5)  in 
voluntary  proceedings  been  granted  a  discharge  in  bank- 
ruptcy within  six  years;  or  (6)  in  the  course  of  the  pro- 
ceedings in  bankruptcy  refused  to  obey  any  lawful  order  of, 
or  to  answer  any  material  question  approved  by  the  court: 
Provided,  that  a  trustee  shall  not  interpose  objections  to  a 
bankrupt's  discharge  until  he  shall  be  authorized  so  to  do 
at  a  meeting  of  creditors  called  for  that  purpose." 

In  considering  the  grounds  of  opposition,  it  is  important 
to  remember  the  distinction  between  the  right  to  a  dis- 
charge and  its  effect  when  granted.  The  right  to  it  is  gov- 
erned by  the  above-quoted  section,  and  the  only  grounds 
of  opposition  are  those  therein  contained.  The  fact  that  a 
discharge  does  not  affect  certain  debts  is  no  reason  why 
the  holders  of  such  debts  should  oppose  it,  as  they  are  un- 
affected by  it.  For  instance,  the  omission  of  creditors  from 
the  list,  unless  done  intentionally,  so  as  to  make  the  swear- 
ing to  the  list  a  false  oath,  is  no  ground  for  refusing  a  dis- 
charge, because  a  discharge  does  not  affect  the  right  of 
such  creditor  to  subsequently  sue  the  bankrupt.18  Nor  is 
the  existence  of  unprovable  debts  a  ground  for  opposing 
the  granting  of  a  discharge,  as  such  discharge,  when 
granted,  is  no  defense  against  them.19 

Nor  can  the  question  of  the  effect  of  a  discharge  be  con- 
sidered on  an  application  for  it.  Such  questions  will  prop- 
erly come  up  when  the  bankrupt  pleads  it  in  defense  to  a 


is  In  re  Monroe  (D.  C.)  114  Fed.  398;  In  re  Blalock  (D.  C.)  118 
Fed.  €79.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  407. 

i»  In  re  Tinker  (D.  C.)  99  Fed.  79;  Tinker  v.  Col  well,  193  U.  S. 
473,  24  Sup.  Ct.  505,  48  L.  Ed.  754;  In  re  Black  (D.  C.)  97  Fed.  493; 
In  re  Carnrichael  (D.  C.)  96  Fed.  594.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  407. 


§   70)  QBOUNDS  OF  OPPOSITION   TO   DISCHARGE  175 

suit  brought  against  him,  but  are  not  proper  issues  on  an 
application  to  the  court  to  obtain  it.20 

Commission  of  Offense  as  Ground  of  Opposition 

The  first  ground  specified  on  which  a  discharge  can  be 
opposed  is  that  the  bankrupt  "has  committed  an  offense 
punishable  by  imprisonment  as  herein  provided."  The  of- 
fenses against  the  bankrupt  act  are  set  out  in  section  29 
of  the  act.  So  far  as  they  relate  to  the  bankrupt  himself, 
the  first  two  named  in  paragraph  "b"  are  practically  the 
only  ones  which  can  be  urged  against  a  discharge.  The 
first  of  these  is,  having  knowingly  and  fraudulently  con- 
cealed while  a  bankrupt,  or,  after  his  discharge,  from  his 
trustee,  any  of  the  property  belonging  to  his  estate  in  bank- 
ruptcy. Mere  proof  of  the  existence  of  property  not  re- 
ported by  the  bankrupt  is  not  sufficient  to  defeat  his  dis- 
charge on  this  ground.  It  must  be  proved  to  have  been 
knowingly  and  fraudulently  concealed.  It  is  not  sufficient 
to  prove  simply  former  possession  of  the  property  by  the 
bankrupt,  but  present  ownership  as  well  must  be  shown.21 
The  offense  of  fraudulent  concealment  may  be  proved 
from  the  bankrupt's  statements  on  his  examination,  and 
those  statements  can  be  used  against  him  for  that  purpose, 
as  the  proceeding  is  not  a  criminal  proceeding.22 

The  second  offense  relating  to  the  bankrupt  is  having 
knowingly  and  fraudulently  made  a  false  oath  or  account 
in  or  in  relation  to  any  proceeding  in  bankruptcy.  This, 
offense  is  committed  when  the  bankrupt  purposely  omits 
property  from  his  sworn  schedules.23 

20  in  re  Marshall  Paper  Co.,  102  Fed.  872,  43  C.  C.  A.  38;    In  re 
McCarty  (D.  C.)  Ill  Fed.  151.     See  "Bankruptcy,"  Dec.  Dig.  (Key- 
No.)  §  407. 

21  In  re  Idzall  (D.  C.)  96  Fed.  314;    In  re  Patterson  (D.  C.)  121 
Fed.  921.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  408. 

22  in  re  Leslie  (D.  C.)   119  Fed.  406;    Shaffer  v.  Koblegard  Co., 
183  Fed.  71,  105  C.  C.  A.  363.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.) 
%W- 

23  Osborne  v.  Perkins,  112  Fed.  127,  50  C.  C.  A.  158;    In  re  Becker 
(D.  C.)  106  Fed.  54;   Id.,  112  Fed.  1020,  50  C.  C.  A.  666;    In  re  Sem- 


176  DISTRICT  COURT — BANKRUPTCY  (Ch.  8 

It  is  not  committed,  however,  by  the  omission  of  prop- 
erty from  a  mere  mistake.24 

The  failure  to  schedule  property  fraudulently  transferred 
is  a  violation  of  the  act  in  this  respect.26 

The  omission  of  property  from  the  schedules  must  be 
intentional  and  fraudulent,  in  order  to  constitute  this  of- 
fense.26 

A  false  oath  must  be  one  material  to  the  bankruptcy 
proceeding-.27 

Here,  too,  the  offense  may  be  proved,  as  far  as  the  ques- 
tion of  a  discharge  is  concerned,  by  the  bankrupt's  state- 
ments in  his  examination,  and  they  may  be  used  against 
him  for  that  purpose.28 

Failure  to  keep  accounts,  etc. 

The  second  ground  of  opposition  to  the  bankrupt's  dis- 
charge is  the  fraudulent  failure  to  keep  books  of  account, 
when  in  contemplation  of  bankruptcy.  The  amendment  of 
February  5,  1903,  has  materially  changed  the  language  of 
this  part  of  section  14,  so  that  now  in  order  to  defeat  a 
discharge  on  this  ground,  it  is  only  necessary  to  prove  that 
the  bankrupt,  with  intent  to  conceal  his  financial  condition, 
destroyed,  concealed,  or  failed  to  keep  books  of  account  or 
records  from  which  such  condition  might  be  ascertained. 
The  omission  of  the  word  "fraudulent"  from  the  first  draft 


rael  (D.  C.)  118  Fed.  487;  In  re  Reed  (D.  C.)  191  Fed.  920.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  408. 

2*  In  re  Morrow  (D.  C.)  97  Fed.  574;  In  re  Freund  (D.  C.)  98  Fed. 
81.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  408. 

2  s  in  re  Skinner  (D.  C.)  97  Fed.  190;  In  re  Gammon  (D.  C.)  109 
Fed.  312.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  408. 

26  in  re  Eaton  (D.  G.)  110  Fed.  731.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  408. 

2TBauman  v.  Feist,  107  Fed.  83,  46  C.  C.  A.  157;  In  re  Blalock 
(D.  C.)  118  Fed.  679;  In  re  Chamberlain  (D.  C.)  180  Fed.  304.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  408. 

28  in  re  Dow's  Estate  (D.  C.)  105  Fed.  889;  In  re  Gaylord,  112 
Fed.  668,  50  C.  C.  A.  415 ;  U.  S.  v.  Brod  (C.  C.)  176  Fed.  169.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  414. 


§   70)  GROUNDS  OF  OPPOSITION  TO  DISCHARGE  177 

of  the  act  does  not  materially  change  it,  for,  even  under  this 
amendment,  any  such  intent  as  that  defined  would  be 
fraudulent.  But  the  omission  of  the  words  "in  contempla- 
tion of  bankruptcy"  does  very  materially  change  the  orig- 
inal act,  and  defeats  a  discharge  for  improper  concealment 
or  destruction  of  books,  though  not  in  contemplation  of 
bankruptcy.  This  change  was  probably  made  in  conse- 
quence of  the  fact  that  the  courts  had  not  entirely  agreed 
as  to  the  meaning  of  this  phrase.  For  instance,  in  Re 
Shertzer  29  it  was  held  that  contemplation  of  bankruptcy 
was  by  no  means  the  equivalent  of  contemplation  of  in- 
solvency, thereby  implying  that  even  proof  of  insolvency 
at  the  time  would  not  be  sufficient.  On  the  other  hand, 
it  had  been  held  that  a  bankrupt  who  failed  to  keep  such 
books  when  he  must  have  known  that  he  was  hopelessly 
insolvent  must  be  presumed  to  have  done  it  fraudulently 
and  in  contemplation  of  bankruptcy.30 

The  amendment  adopts  this  latter  construction  of  the 
act,  and  renders  the  task  of  the  opposing  creditor,  to  that 
extent,  easier.  The  mere  failure  to  keep  books  under  the 
original  act,  or  the  keeping  of  insufficient  and  inaccurate 
books,  was  not  of  itself  sufficient  to  defeat  a  discharge  on 
this  ground — certainly  in  case  of  a  business  where  the 
keeping  of  an  elaborate  set  of  books  was  not  necessary. 
The  failure  must  have  been  with  fraudulent  intent.31 

The  actual  destruction  of  books  would  defeat  an  appli- 
cation under  this  clause.32 

The  delinquency  which  will  defeat  a  discharge  on  this 

2»  (D.  C.)  99  Fed.  706.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
409. 

so  in  re  Kenyon  (D.  C.)  112  Fed.  658;  In  re  Feldstein,  115  Fed. 
259,  53  C.  C.  A.  479.  See,  also,  In  re  Marcus  (D.  C.)  192  Fed.  743. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  409. 

si  In  re  Idzall  (D.  C.)  96  Fed.  314;  In  re  Corn  (D.  C.)  106  Fed. 
143;  In  re  Lafleche  (D.  C.)  109  Fed.  307.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  409. 

32  in  re  Conley  (D.  C.)  120  Fed.  42.  See  "Bankruptcy"  Dec.  Dig. 
(Key-No.)  §  409. 

HUGHES  FED.PB.(2o  ED.) — 12 


178  DISTRICT  COURT — BANKRUPTCY  (Ch.  8 

ground  must  be  a  personal  delinquency  of  the  bankrupt. 
For  instance,  in  the  case  of  a  partnership,  the  failure  of 
one  partner  to  keep  proper  books  would  not  defeat  the  ap- 
plication of  an  innocent  partner  for  his  discharge.33 

Where  a  husband  conducted  the  business  of  his  wife,  she 
leaving  everything  to  him  and  being  innocent  herself,  his 
failure  to  keep  proper  books  would  not  defeat  her  applica- 
tion.34 

Other  Grounds 

The  new  grounds  specified  in  the  amendments  of  Febru- 
ary 5,  1903,  and  June  25,  1910,  hardly  require  discussion.85 

THE  DEBTS  NOT  AFFECTED  BY  A  DISCHARGE 

71.  The  debts  not  affected  by  a  discharge  in  bankruptcy 
are  taxes,  liabilities  for  obtaining  property  by  false 
pretenses  or  false  representations,  or  for  willful  or 
malicious  injuries  to  the  person  or  property  of  an- 
other, or  for  alimony  due  or  to  become  due,  or 
for  maintenance  or  support  of  wife  or  child,  or  for 
seduction  of  an  unmarried  female,  or  for  criminal 
conversation;  also  improperly  scheduled  debts 
and  fiduciary  debts. 

Section  17  of  the  act  prescribes  the  effect  of  a  discharge 
when  granted.  The  second  subdivision  in  the  original  act 
reads:  "are  judgments  in  actions  for  frauds,  or  obtaining 
property  by  false  pretenses  or  false  representations,  or  for 
willful  and  malicious  injuries  to  the  person  or  property  of 
another." 

ss  In  re  Schultz  (D.  C.)  109  Fed.  264.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  409. 

s*  in  re  Hyman  (D.  C.)  97  Fed.  195.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  409. 

35  See,  as  illustrations,  Hardie  v.  Swafford  Bros.  Dry  Goods  Co., 
165  Fed.  588,  91  C.  C.  A.  426,  20  L.  R.  A.  (N.  S.)  785;  In  re  Reed 
(D.  C.)  191  Fed.  920.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  407. 


§   71)         THE   DEBTS   NOT   AFFECTED   BY   A   DISCHARGE  179 

This  subdivision  has  been  changed  by  the  act  of  Febru- 
ary 5,  1903,  to  read  as  follows:  "are  liabilities  for  obtaining 
property  by  false  pretenses  or  false  representations,  or  for 
willful  and  malicious  injuries  to  the  person  or  property  of 
another,  or  for  alimony  due  or  to  become  due,  or  for  main- 
tenance or  support  of  wife  or  child,  or  for  seduction  of  an 
unmarried  female,  or  for  criminal  conversation." 

This  amendment  was  evidently  intended  to  meet  the 
course  of  decisions  on  the  original  act.  It  seemed  to  con- 
template that  the  only  other  liabilities  which  were  unaf- 
fected by  the  discharge  were  those  which  had  been  re- 
duced to  judgment.  Under  its  original  form,  the  courts 
held  that,  if  it  did  not  cover  debts  not  reduced  to  judg- 
ment, they  would  give  the  creditor  time  to  reduce  his  claim 
to  judgment,  so  that  the  discharge  could  not  affect  them.36 

There  had  been  some  conflict  of  decisions  on  the  ques- 
tion what  constitutes  a  willful  and  malicious  injury  to  the 
person.  In  Re  Tinker,37  it  had  been  questioned  wheth- 
er this  phrase  would  cover  damages  in  an  action  of  crim. 
con.  as  that  would  hardly  be  said  to  be  a  willful  or  mali- 
cious injury  to  the  person  of  the  husband.  On  the  other 
hand,  in  Re  Freche,38  it  had  been  held  that  damages  re- 
covered for  the  seduction  of  a  daughter  did  come  within 
this  language,  and  in  Re  Maples39  it  was  held  that  a  judg- 
ment by  an  unmarried  woman  for  her  own  seduction,  un- 


se  in  re  Cole  (D.  C.)  106  Fed.  837;  In  re  Wollock  (D.  C.)  120  Fed. 
516.  As  to  false  representations,  see  FORSYTH  v.  VEHMEYER, 
177  U.  S.  177,  20  Sup.  Ct.  623,  44  L.  Ed.  723.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §§  423,  4%4- 

37  (D.  C.)  99  Fed.  79.  But  the  question  of  the  effect  of  this  same 
discharge  was  decided  in  Tinker  v.  Colwell,  193  U.  S.  473,  24  Sup. 
Ct.  505,  48  L.  Ed.  754,  to  the  effect  that  such  cause  of  action  was 
not  barred  by  a  discharge.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  § 

424- 

ss  (D.  C.)  109  Fed.  620.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
424. 

so  (D.  C.)  105  FecL  919.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  § 
424- 


180  DISTEICT  COURT — BANKRUPTCY  (Ch.  8 

der  a  Montana  statute  giving  such  a  right  of  action,  was 
a  willful  and  malicious  injury  to  her  person  or  property. 
These  questions  are  set  at  rest  by  the  amendment. 

However,  if  there  is  a  liability  for  an  alleged  fraudulent 
transaction,  and  the  creditor,  waiving  the  fraud,  closes  it 
by  taking  promissory  notes  of  the  debtor,  and  then  gets 
judgment  on  the  notes,  that  is  not  a  judgment  in  an  action 
for  fraud,  in  the  sense  of  the  original  act.40 

Another  class  of  debts  not  affected  by  a  discharge  is 
the  unscheduled  debts,  unless  the  creditor  had  notice  or 
actual  knowledge  of  the  bankruptcy  proceedings.41 

The  last  class  mentioned  is  debts  created  by  his  fraud, 
embezzlement,  misappropriation,  or  defalcation  while  act- 
ing as  an  officer  or  in  any  fiduciary  capacity.  The  fraud 
contemplated  in  this  subdivision  and  the  previous  one 
means  actual,  positive  fraud,  involving  moral  turpitude, 
not  mere  constructive  fraud  or  fraud  in  law.*2 

The  debts  contemplated  by  this  subdivision  are  those 
arising  on  actual,  technical  trusts,  and  were  not  intended 
to  cover  trusts  arising  from  mere  relations  of  confidence, 
though  that  may  be  the  colloquial  sense  of  the  term.43 

For  this  reason,  debts  due  by  a  commission  merchant  or 
broker  to  customers  for  property  of  theirs  which  he  has 

40  Hargadine-McKittrick  Dry  Goods  Co.  v.  Hudson,  122  Fed.  232, 
58  C.  C.  A.  596.    See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  423. 

41  Such  knowledge,  to  affect  the  creditor,  must  be  acquired  before 
the  discharge.     Knowledge  later,  though  in  time  to  prove  his  debt 
and  move  to  revoke  the  discharge,  is  not  enough.    Birkett  v.  Bank, 
195  U.  S.  345,  25  Sup.  Ct.  38,  49  L.  Ed.  231.    The  omission  from  the 
schedule  of  the  creditor's  residence  when  known  and  the  creditor's 
ignorance  of  the  proceedings  prevent  his  claim  from  being  affected 
by  the  discharge.     Miller  v.  Guasti,  226  U.  S.  170,  33  Sup.  Ct.  49,  57 
L.  Ed. .    See  ''Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  425. 

42  Ames  v.  Moir,  138  U.  S.  306,  11  Sup.  Ct.  311,  34  L.  Ed.  951;  Bul- 
lis  v.  O'Beirne,  195  U.  S.  606,  25  Sup.  Ct.  118,  49  L.  Ed.  340.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  426. 

43  Bracken  v.  Milner  (C.  C.)  104  Fed.  522;    In  re  Butts  (D.  C.)  120 
Fed.  966.    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  426;  Cent.  Dig.  §§ 
791-807. 


§   72)  REVOCATION   OF  A   DISCHARGE  181 

sold  are  not  debts  contracted  in  a   fiduciary  capacity,  in 
the  sense  of  the  statute.44 


REVOCATION  OF  A  DISCHARGE 

72.  Under  section  15  of  the  act,  the  judge  may,  upon  the 
application  of  parties  in  interest  who  have  not 
been  guilty  of  undue  laches,  filed  at  any  time  with- 
in one  year  after  a  discharge  shall  have  been 
granted,  revoke  it  upon  a  trial,  if  it  shall  be  made 
to  appear  that  it  was  obtained  through  the  fraud 
of  the  bankrupt,  and  that  the  knowledge  of  the 
fraud  has  come  to  the  petitioners  since  the  grant- 
ing of  the  discharge,  and  that  the  actual  facts  did 
not  warrant  the  discharge. 

This  evidently  contemplates  a  showing  on  the  proceed- 
ing for  a  revocation  nearly  as  strong  as  that  necessary  to 
secure  a  new  trial  at  common  law  on  the  ground  of  after- 
discovered  evidence.  The  ignorance  of  creditors  alone  is 
not  enough,  if  the  facts  on  which  they  base  their  motion 
to  revoke  were  known  to  the  trustee,  as  he  represents  them 
to  this  extent.45 

A  fraud  long  prior  to  the  adjudication  in  bankruptcy  is 
not  such  a  one  as  is  contemplated  by  this  section.46 

A  creditor  who  has  not  proved  his  claim  is  sufficiently  a 
party  in  interest  to  move  for  a  revocation,  and  the  court 
itself,  if  it  thinks  that  there  are  sufficient  reasons  for  it, 
may  revoke  the  discharge  within  the  year.47 

*  *  In  re  Basch  (D.  C.)  97  Fed.  761;  Knott  v.  Putnam  (D.  C.)  107 
Fed.  907 ;  Crawford  v.  Burke,  195  U.  S.  176,  25  Sup.  Ct.  9,  49  L.  Ed. 
147.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §  426. 

46  In  re  Hansen  (D.  C.)  107  Fed.  252.    As  to  the  effect  of  laches  on 
the  part  of  creditors,  see  In  re  Mauzy  (D.  C.)  163  Fed.  900.     See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  417;  Cent.  Dig.  §§  867-871. 

<o  In  re  Hoover  (D.  C.)  105  Fed.  354.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  417. 

47  in  re  Bimberg  (D.  C.)  121  Fed.  942.     See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  4^7. 


182  DISTRICT   COURT — BANKRUPTCY  (Ch.  8 

But  if  the  bankrupt  has  fraudulently  concealed  or  failed 
to  list  his  property,  and  this  fact  is  found  out  by  the  cred- 
itors after  the  granting  of  the  discharge,  and  could  not 
have  been  found  out  before,  then  the  discharge  may  be 
revoked.48 

48  in  re  Meyers  (D.  C.)  100  Fed.  775.  The  fraud  must  be  actual, 
such  as  would  defeat  the  grant  of  a  discharge.  In  re  Wright  (D.  C.) 
177  Fed.  578.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  411. 


§  73)  DISTEICT  COURT — CLASSES  OF  JURISDICTION        183 


CHAPTER  IX 

THE    DISTRICT    COURT    (Continued)— PARTICULAR    CLASSES 
OF  JURISDICTION 

73.  Claims  against  the  United  States — Proper  Forum. 

74.  Same — The  Subjects  of  Jurisdiction. 

75.  Same — The  Procedure. 

76.  Same — The  Appeal. 

77.  Same — The  Proper  Appellate  Court. 

78.  Suits  to  Abate  Unlawful  Inclosures  of  Public  Lands. 

79.  Suits  under  Immigration  Laws. 

80.  Suits  against  Restraints  and  Monopolies. 

81.  Claims  of  Indians  for  Lands  under  Treaties. 

82.  Suits  against  United  States  for  Partition. 

83.  Suits  under  Chinese  Exclusion  Laws. 

84.  Unclassified  Cases. 


CLAIMS  AGAINST  THE  UNITED  STATES- 
PROPER  FORUM 

73.  All  suable  claims  against  the  United  States  may  be 
prosecuted  in  the  court  of  claims,  which  is  located 
in  Washington.  The  district  court  has  concurrent 
jurisdiction  with  this  court  over  such  claims  in  cer- 
tain classes  of  cases  fixed  by  law ;  the  jurisdiction 
of  the  district  court  being  limited  to  cases  involv- 
ing not  over  ten  thousand  dollars. 

Until  the  act  of  March  3,  1887,  known  as  the  "Tucker 
Act,"  1  the  only  court  which  had  jurisdiction  of  claims 
against  the  United  States  was  the  court  of  claims.  This 
act,  however,  gave  to  the  district  and  circuit  courts  con- 
current jurisdiction  with  the  court  of  claims,  the  jurisdic- 
tion of  the  district  court  being  limited  to  cases  involving 

i  24  Stat.  505,  c.  359  (U.  S.  Comp.  St.  1901,  p.  752). 


184  DISTRICT  COURT — CLASSES  OF  JURISDICTION       (Ch.  9 

not  over  one  thousand  dollars,  and  the  jurisdiction  of  the 
circuit  court  to  cases  over  that  amount  up  to  ten  thousand 
dollars.  Then  paragraph  20,  §  24,  of  the  Judicial  Code, 
gives  jurisdiction  to  the  district  court  up  to  ten  thousand 
dollars.  The  theory  of  this  act  is  to  give  the  litigant  an 
opportunity  of  asserting  his  claim  against  the  government 
in  a  more  convenient  forum  than  the  court  of  claims,  which 
may  be  far  distant  from  him. 


SAME— THE  SUBJECTS  OF  JURISDICTION 

74.  The  act  gives  jurisdiction  on  claims  founded  on  the 
Constitution  or  laws  of  the  United  States,  upon 
contracts,  express  or  implied,  in  cases  not  sound- 
ing in  tort,  except  in  war  claims  and  claims  ad- 
versely acted  upon  by  other  government  agencies 
authorized  to  act.  Claims  for  pensions,  also,  are 
excepted  from  the  general  class  of  jurisdiction. 

The  clause  of  this  section  on  which  jurisdiction  is  most 
commonly  based  is  the  clause  giving  jurisdiction  for  claims 
founded  "upon  any  contract,  express  or  implied,  with  the 
government  of  the  United  States,  or  for  damages,  liqui- 
dated or  unliquidated,  in  cases  not  sounding  in  tort,  in  re- 
spect to  which  claims  the  party  would  be  entitled  to  redress 
against  the  United  States  either  in  a  court  of  law,  equity 
or  admiralty  if  the  United  States  were  suable,  and  of  all 
set-offs,  counterclaims,  claims  for  damages,  whether  liqui- 
dated or  unliquidated,  or  other  demands  whatsoever  on  the 
part  of  the  government  of  the  United  States  against  any 
claimant  against  the  government  in  said  court."  This  in- 
cludes only  money  demands.  It  does  not  give  any  of  the 
courts  jurisdiction  in  equity  to  compel  the  issue  and  de- 
livery of  a  patent  for  public  lands,  nor  to  cancel  a  judgment 
lien  in  favor  of  the  United  States  illegally  placed  upon  an 


§    74)  CLAIMS   AGAINST  THE   UNITED  STATES  185 

individual's  land  by  a  government  officer,  nor  to  decree 
specific  performance.2 

Claims  for  a  Tort 

Claims  for  a  tort  are  expressly  excluded,  and  this  re- 
gardless of  the  mere  form  of  pleading  which  the  plaintiff 
may  adopt.  For  instance,  a  suit  by  a  person  who,  while  in 
a  government  building,  is  injured  by  the  fall  of  a  govern- 
ment elevator,  cannot  be  sustained,  though  allegations  may 
be  made  that  there  was  a  promise  of  the  government  to 
carry  the  plaintiff  safely.3  In  order  to  sustain  the  jurisdic- 
tion on  the  ground  of  an  implied  contract,  there  must  be 
some  element  of  contract  in  the  case.  For  instance,  suit 
may  be  brought  for  the  value  of  property  taken  or  used  by 
the  government  without  compensation,  where  no  adverse 
title  to  the  property  is  set  up  by  the  government,  for  there 
is  an  implied  contract  with  the  government  to  pay  for  prop- 
erty so  taken  or  used.4 

On  the  other  hand,  when  the  claimant's  right  to  the  prop- 
erty is  denied,  and  the  government  takes  it  under  the  asser- 
tion of  a  right  to  use  it,  then  the  action  is  in  tort,  and  can- 
not be  sustained  on  the  theory  of  an  action  for  use  and 
occupation;  nor  can  it  be  made  an  action  on  contract  by 
merely  alleging  an  implied  promise  to  pay  under  such  cir- 
cumstances.5 


2  U.  S.  v.  Jones,  131  U.  S.  1,  9  Sup.  Ct.  669,  33  L.  Ed.  90;  Holmes 
v.  U.  S.  (D.  C.)  78  Fed.  513 ;  District  of  Columbia  v.  Barnes,  197  U. 
S.  146,  25  Sup.  Ct.  401,  49  L.  Ed.  699;  Plain  v.  Home  (C.  C.)  196 
Fed.  582.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  426,  449;  Cent.  Dig. 
§§  1131,  1163-1169. 

s  BIGBY  v.  U.  S.,  188  U.  S.  440,  23  Sup.  Ct.  468,  47  L.  Ed.  519. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  426;  "United  States,"  Dec.  Dig. 
(Key-No.)  §  69. 

*  U.  S.  v.  Great  Falls  Mfg.  Co.,  112  U.  S.  645,  5  Sup.  Ct.  306,  28  L. 
Ed.  846;  U.  S.  v.  Buffalo  Pitts  Co.,  193  Fed.  905,  114  C.  C.  A.  119. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  426;  "United  States,"  Dec.  Dig. 
(Key-No.)  §  69. 

s  Hill  v.  U.  S.,  149  U.  S.  593,  13  Sup.  Ct.  1011,  37  L.  Ed.  862;  Ribas 
y  Hijo  v.  U.  S.,  194  U.  S.  315,  24  Sup.  Ct.  727,  48  L.  Ed.  994 ;  Cole- 


186  DISTRICT  COURT — CLASSES   OF  JURISDICTION       (Ch.  9 

This  distinction  is  illustrated  by  the  decisions  in  refer- 
ence to  the  use  of  a  patent  by  the  government.  Where 
the  use  is  with  the  consent  of  the  patentee,  a  promise  to 
pay  is  implied,  and  suit  is  maintainable;  but,  where  the 
use  is  without  the  consent  of  the  patentee,  a  suit  by  the 
patentee  is  in  tort,  and  not  sustainable,  though  he  may 
choose  to  frame  his  pleadings  on  the  theory  of  an  implied 
contract.6  And  a  suit  for  an  injury  equivalent  to  a  taking 
of  the  property  without  compensation,  where  the  govern- 
ment does  not  deny  the  title,  is  within  the  statute.7  A  suit 
by  a  contractor  for  extra  work,  and  damages  caused  by  the 
interference  of  a  government  agent  during  the  work — the 
contractor  having  a  contract  with  the  government — is  sus- 
tainable as  an  action  of  contract.8  So  as  to  a  suit  for 
salvage  to  government  property.9 

In  suits  in  the  court  of  claims  it  had  been  held  that  the 
government  could  plead  a  counterclaim  and  recover  judg- 
ment on  it.10  The  Judicial  Code  extends  this  right  to  the 
government  as  to  any  cross-demand,  no  matter  how  irrele- 
vant to  the  original  claim. 

Under  the  original  act  it  was  held  that  these  suits  must 


man  v.  U.  S.,  181  Fed.  599.  See  "United  States,"  Dec.  Dig.  (Key-No.) 
§  127;  Cent.  Dig.  §  116. 

«  U.  S.  v.  Palmer,  128  U.  S.  262,  9  Sup.  Ct.  104,  32  L.  Ed.  442 ; 
Schillinger  v.  U.  S.,  155  U.  S.  163,  15  Sup.  Ct.  85,  39  L.  Ed.  108;  U. 
S.  v.  Soci6t§  Anonyme  Des  Anciens  Etablissements  Gail,  224  U.  S. 
309,  32  Sup.  Ct.  479,  56  L.  Ed.  778.  See  "United  States,"  Dec.  Dig. 
(Key-No.)  §  97;  Cent.  Dig.  §  76. 

7  U.  S.  v.  LYNAH,  188  U.  S.  445,  23  Sup.  Ct.  349,  47  L.  Ed.  539. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  415,  426. 

s  Bowe  v.  U.  S.  (C.  C.)  42  Fed.  761.  See  "United  States,"  Dec.  Dig. 
(Key-No.)  §  95;  Cent.  Dig.  §  74. 

»  U.  S.  v.  Cornell  Steamboat  Co.,  202  U.  S.  184,  26  Sup.  Ct.  648. 
50  L.  Ed.  987;  Hartford  &  N.  Y.  Transp.  Co.  v.  U.  S.  (C.  C.)  138 
Fed.  618 ;  U.  S.  v.  Morgan,  99  Fed.  570,  39  C.  C.  A.  653.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §§  415,  426. 

10  Steele  v.  U.  S.,  113  U.  S.  128,  5  Sup.  Ct.  396,  28  L.  Ed.  952;  U. 
S.  v.  Burchard,  125  U.  S.  176,  8  Sup.  Ct.  832,  31  L.  Ed.  662.  See 
"United  States,"  Dec.  Dig.  (Key-No.)  §  130;  Cent.  Dig.  §  118. 


§   74)  CLAIMS   AGAINST  THE   UNITED   STATES  187 

be  brought  within  six  years  after  the  right  of  action  ac- 
crues, but  the  additional  time  allowed  by  the  saving  clause 
of  section  1069  X1  of  the  United  States  Revised  Statutes  to 
persons  beyond  seas  and  under  disability  is  also  to  be  taken 
into  account.12  This  construction  has  been  embodied  in 

* 

the  Judicial  Code,  in  section  24,  par.  20. 

Concurrent  Jurisdiction 

The  jurisdiction  of  the  district  court  within  the  pecuniary 
limits  above  mentioned  is  coincident  with  the  court  of 
claims,  except  that  it  cannot  take  cognizance  of  cases 
brought  to  recover  fees,  salary,  or  compensation  for  official 
services  of  officers  of  the  United  States,  or  their  assigns ; 
the  idea  probably  being  that  suits  of  this  sort  can  best  be 
asserted  at  the  seat  of  government,  where  the  court  of 
claims  is  located. 

Claims  by  an  Alien 

It  is  an  interesting  question  whether  an  alien  can  sue 
under  this  act  in  the  district  court.  In  favor  of  his  right 
to  sue,  it  may  be  said  that  he  certainly  has  the  right  to  sue 
in  the  court  of  claims,  provided  his  own  country  permits 
a  similar  privilege  to  citizens  of  this  country.  This  right  is 
given  by  section  1068  of  the  Revised  Statutes.  Then  the 
act  gives  the  district  court  concurrent  jurisdiction  with  the 
court  of  claims,  excepting  only  suits  by  officers.  If  the  act 
stopped  here,  the  right  of  an  alien  to  sue  would  be  clear, 
but  the  fifth  section  of  the  original  act  (continued  in  force 
by  section  297  of  the  Judicial  Code)  requires  the  petition 
to  be  filed  "in  the  district  where  the  plaintiff  resides."  A 
resident  alien,  therefore,  could  undoubtedly  sue,  but  wheth- 
er an  alien  who  merely  comes  into  the  United  States  for  a 
temporary  purpose  can  sue,  and,  if  so,  where,  is  a  more 
difficult  question.  For  instance,  there  have  been  some 

11  U.  S.  Comp.  St.  1901,  p.  740. 

12  TL  s.  v.  Greathouse,  166  U.  S.  601,  17  Sup.  Ct.  701,  41  L.  Ed. 
1130.    See  "Limitation  of  Actions,"  Dec.  Dig.  (Key-No.)  §  3. 


188  DISTRICT  COURT — CLASSES  OF  JURISDICTION       (Ch.  9 

cases  of  British  captains  towing  in  government  light-ships, 
and  then  claiming  salvage  upon  them.  Such  aliens  resided 
in  no  district,  and  yet  public  policy  would  seem  to  require 
that  they  should  be  encouraged  to  render  such  salvage 
services.  Such  a  case  was  that  of  The  Viola,13  but  the 
question  of  jurisdiction  was  not  raised  in  the  case.  In  any 
event,  it  would  seem  clear  that  if  such  a  suit  is  brought, 
and  the  United  States  by  an  authorized  officer  appears  and 
defends  on  the  merits,  the  court  would  have  jurisdiction  of 
the  case ;  the  question  of  the  district  in  which  to  sue  being 
a  question  of  personal  jurisdiction,  and  not  jurisdiction  over 
the  subject-matter,  and  therefore  one  which  can  be  waived. 


75.  A  suit  under  this  act  is  instituted  by  filing  a  petition 
in  the  proper  court  duly  verified,  and  setting  out 
the  full  name  and  residence  of  the  plaintiff,  the 
nature  of  his  claim,  and  a  succinct  statement  of  his 
case. 

A  copy  of  this  petition  must  be  served  upon  the  district 
attorney  of  the  United  States  in  the  district  where  the  suit 
is  brought,  and  another  copy  must  be  mailed  by  registered 
letter  to  the  Attorney  General,  and  proof  of  this  fact,  by 
affidavit  of  the  service  and  mailing  of  the  letter,  must  be 
filed  with  the  clerk  of  the  court. 

The  district  attorney  must  then  appear  within  sixty  days 
after  the  service  and  make  defense,  unless  the  court  gives 
him  further  time.  But  no  judgment  by  default  can  be  taken 
in  case  he  does  not.  It  is  still  necessary  to  prove  the  claim 
to  the  satisfaction  of  the  court.  The  trial  is  by  the  court 

is  (C.  C.)  52  Fed.  172;  55  Fed.  829,  5  C.  C.  A.  283.  See,  also,  New 
York  &  O.  S.  S.  Co.  v.  U.  S.  (D.  C.)  202  Fed.  311;  Reid  Wrecking  Co. 
v.  U.  S.  (D.  C.)  202  Fed.  315.  See  "Aliens,"  Dec.  Dig.  (Key-No.)  § 
16;  "Courts,"  Dec.  Dig.  (Key-No.)  §§  268,  426. 


§   76)  CLAIMS   AGAINST  THE   UNITED  STATES  189 

without  a  jury,  and  it  is  its  duty  to  cause  a  written  opinion 
to  be  filed  in  the  case,  setting  forth  the  specific  findings 
of  the  court  on  the  facts,  and  its  conclusions  upon  the  ques- 
tions of  law  involved,  and  to  render  judgment  thereon.14 
The  court  must  proceed  according  to  the  nature  of  the 
cause  of  action  asserted,  whether  at  common  law,  in  equity, 
or  admiralty. 

SAME— THE  APPEAL 

76.  On  the  decision  of  the  case,  either  the  plaintiff  or  the 
United  States  may  have  the  right  of  appeal  or  writ 
of  error,  according  to  the  nature  of  the  case. 

Section  9  of  the  original  act  gave  a  right  of  appeal  to 
either  side,  and  conformed  the  procedure  and  the  question 
whether  to  go  up  by  appeal  or  writ  of  error  to  the  general 
laws  on  the  subject.  This  section  is  repealed  by  the  Judi- 
cial Code,  evidently  because  it  is  superfluous. 

In  Chase  v.  United  States  15  the  question  was  presented 
whether  the  course  of  review  in  such  case  should  be  by  ap- 
peal, or  whether  it  could  also  be  by  writ  of  error.  It  was 
decided  that  the  method  of  review  depended  upon  the  na- 
ture of  the  case.  If  it  was  in  its  nature  a  common-law  case, 
the  review  should  be  by  writ  of  error.  If  it  was  an  equity 
or  admiralty  case,  the  review  should  be  by  appeal.  This 
test,  while  clear  enough  on  principle,  may  frequently  be 
difficult  to  apply  in  practice.  The  only  pleadings  are  peti- 
tion and  answer,  and  there  are  so  many  instances  where 
courts  of  common  law,  courts  of  equity,  and  courts  of  ad- 

i*  This  finding  may  be  in  the  form  of  a  decree  and  an  opinion  sep- 
arate from  the  decree.  U.  S.  v.  Hyams,  146  Fed.  15,  76  C.  C.  A.  523. 
See  "United  States,"  Dec.  Dig.  (Key-No.)  §  143. 

15155  U.  S.  489,  15  Sup.  Ct.  174,  39  L.  Ed.  284.  See,  also,  U.  S. 
v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct  294,  43  L.  Ed.  556.  See,  also, 
U.  S.  v.  Swift,  139  Fed.  225,  226,  71  C.  C.  A.  351 ;  Price  v.  U.  S.,  169 
Fed.  791,  95  C.  C.  A.  257.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  856; 
"United  States,"  Dec.  Dig.  (Key-No.)  §  146. 


190  DISTRICT  COURT — CLASSES   OF   JURISDICTION       ( Ch.  9 

miralty  have  concurrent  jurisdiction,  that  it  may  often  be 
difficult  to  decide  in  a  given  case  whether  the  case  is  in  its 
nature  a  common-law,  an  equity,  or  an  admiralty  suit.  For 
instance,  suppose  the  case  of  towing  in  a  disabled  light- 
ship at  the  request  of  the  crew  aboard ;  if  the  vessel  were 
not  a  government  vessel,  the  party  rendering  the  service 
could  sue  on  a  simple  contract  of  employment  at  common 
law,  or  could  sue  in  personam  or  in  rem  in  an  admiralty 
court  for  salvage.  So,  too,  if  the  government  should  char- 
ter some  vessel  and  the  owner  should  sue  for  the  charter 
money,  that  would  be  a  suit  of  which  either  a  common- 
law  or  an  admiralty  court  might  have  jurisdiction.  In 
such  cases  either  method  of  review  would  probably  be  safe. 

SAME— THE  PROPER  APPELLATE  COURT 

77.  The  proper  appellate  court  in  such  cases,  where  no  spe- 
cial question  is  involved,  is  the  circuit  court  of  ap- 
peals. 

The  court  to  which  appeals  from  decisions  of  the  district 
court  should  now  be  taken,  where  no  special  question  is 
involved,  is  the  circuit  court  of  appeals.  Prior  to  the  act 
of  March  3,  1891, 16  establishing  that  court,  the  Supreme 
Court  had  held  that  an  appeal  went  from  the  district  court 
to  the  Supreme  Court,  regardless  of  the  amount  involved, 
basing  it  upon  the  rule  applicable  to  the  court  of  claims.17 
Chase  v.  United  States,18  though  not  decided  until  1894, 
was  an  appeal  from  a  judgment  rendered  in  November, 
1890.  But  the  fourth  section  of  the  act  of  March  3,  1891 
(left  in  force  by  the  Judicial  Code),  establishing  the  circuit 

16  U.  S.  Comp.  St.  1901,  p.  547. 

IT  TJ.  S.  v.  Davis,  131  IT.  S.  36,  9  Sup.  Ct.  657,  33  L.  Ed.  93.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  405. 

is  155  U.  S.  489,  15  Sup.  Ct  174,  39  L.  Ed.  284.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  405. 


§   77)  CLAIMS   AGAINST  THE   UNITED   STATES  191 

courts  of  appeals,  provides  that  judgments  of  the  district 
courts  are  subject  to  review  only  in  the  Supreme  Court  of 
the  United  States,  or  in  the  circuit  courts  of  appeals  as 
therein  provided.  The  fifth  section,  as  modified  by  section 
238  of  the  Judicial  Code,  gives  the  Supreme  Court  jurisdic- 
tion only  in  special  cases,  involving  mainly  jurisdictional 
or  constitutional  questions.  The  sixth  section,  as  modified 
by  section  128  of  the  Judicial  Code,  provides  that  the  cir- 
cuit court  of  appeals  shall  review  the  final  decisions  of  the 
district  court  in  all  cases  other  than  those  that  can  be  taken 
direct  to  the  Supreme  Court,  unless  otherwise  provided  by 
law.  Under  these  different  provisions  appeals  should  go 
to  the  circuit  court  of  appeals,  unless  there  was  some  spe- 
cial ground  of  jurisdiction  in  the  Supreme  Court  like  those 
mentioned  in  the  fifth  section.19 

Bigby  v.  United  States 20  went  to  the  Supreme  Court 
because  there  was  a  certificate  that  the  jurisdiction  of  the 
court  was  in  issue. 

The  case  goes  up  for  review  simply  on  the  findings  of 
the  court  as  to  the  facts  and  law,  which  is  much  like  a  spe- 
cial verdict.21  These  decisions  probably  mean  nothing 
more  than  that  the  plaintiff  cannot  take  his  whole  case  up 
on  the  evidence.  They  can  hardly  be  presumed  to  mean 
that  the  lower  court,  by  its  opinion  and  findings,  could  shut 
out  the  review  of  rulings  on  legal  questions.  For  instance, 
if  the  lower  court  should  exclude  evidence  which  it  ought 
to  have  admitted,  surely  the  plaintiff  could  take  a  bill  of 
exceptions  to  such  exclusion  if  the  case  were  a  common- 
law  case,  or  make  a  formal  tender  of  what  he  expected 
to  prove  in  the  depositions,  and  get  the  ruling  of  the  court 

i»  U.  S.  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct.  294,  43  L.  Ed.  556. 
See  "Courts"  Dec.  Dig.  (Key-No.)  §  405. 

20  188  U.  S.  400,  23  Sup.  Ct.  468,  47  L.  Ed.  519.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  281,  405. 

21  U.  S.  v.  Kelly,  89  Fed.  946,  32  C.  C.  A.  441;    Stone  v.  U.  S.,  164 
U.  S.  380,  17  Sup.  Ct  71,  41  L.  Ed.  477.     See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  556;   "United  States,"  Dec.  Dig.  (Key-No.)  §  146. 


192  DISTRICT   COURT — CLASSES   OF  JURISDICTION       (Ch.  9 

thereon,  if  the  case  were  in  equity  or  admiralty,  and  have 
the  appellate  court  review  the  action  of  the  lower  court  for 
such  error  of  law. 


SUITS  TO  ABATE  UNLAWFUL  INCLOSURES  OF 
PUBLIC  LANDS 

78.  The  district  court  is  given  certain  statutory  jurisdiction 
in  suits  to  abate  unlawful  inclosures  of  public 
lands. 

Under  the  act  of  February  25,  1885, 22  inclosures  of  public 
lands  by  parties  not  having  any  color  of  title  thereto  are 
forbidden,  and  it  is  made  the  duty  of  the  district  attorney 
to  institute  a  civil  suit  in  the  proper  district  or  circuit  court 
in  the  name  of  the  United  States  against  the  offender. 
Paragraph  21,  §  24,  of  the  Judicial  Code,  confers  this  ju- 
risdiction on  the  district  court.  It  provides  that  process 
may  be  served  on  any  agent  or  employe  who  has  charge 
or  control  of  the  inclosure.  Under  this  act  equity  has 
jurisdiction  to  remove  an  illegal  inclosure  by  mandatory 
injunction,  or  to  prohibit  the  erection  of  any  other  by  ordi- 
nary injunction.23  The  proceeding  is  a  special  statutory 
proceeding  giving  relief  in  a  form  unknown  to  the  common- 
law  courts.  It  is  not  available  against  any  one  who  claims 
under  a  bona  fide  claim  or  color  of  title,  nor  can  the  legal 
validity  of  the  defendant's  title  be  settled  in  such  a  suit. 
As  far  as  title  is  concerned,  the  only  question  which  the 
court  can  consider  is  whether  the  defendant  has  a  bona 
fide  claim  or  color  of  title.2* 

22  23  Stat.  321,  c.  149  (U.  S.  Comp.  St.  1901,  p.  1524). 

23U.  S.  v.  Brighton  Ranch  Co.  (C.  C.)  25  Fed.  465;  Id.  (C.  C.) 
26  Fed.  218.  See  "Public  Lands,"  Dec.  Dig.  (Key-No.)  §  19;  Cent. 
Dig.  §§  25,  26. 

24  U.  S.  v.  Osborn  (C.  C.)  44  Fed.  29;  Cameron  v.  U.  S.,  148  U.  S. 
301,  13  Sup.  Ct.  595,  37  L.  Ed.  459.  See  "Public  Lands,"  Dec.  Dig. 
(Key-No.)  §  19;  Cent.  Dig.  §§  25,  26. 


§   79)  SUITS   UNDER  IMMIGRATION  LAWS  193 

The  act  forbids  any  inclosure  of  government  lands, 
though  the  inclosure  is  brought  about  by  fences  erected  on 
the  claimant's  own  lands.  For  instance,  where  the  claim- 
ant owned  alternate  sections  and  the  other  sections  were 
owned  by  the  government,  it  was  held  a  violation  of  the  act 
to  build  fences,  on  the  claimant's  own  lands,  a  few  inches 
off  from  the  boundary,  the  result  of  which  was  to  inclose 
the  government's  sections  also ;  and  this  though  the  claim- 
ant supplied  gates  giving  easy  access  to  the  government's 
sections,  and  though  the  claimant's  object  was  a  public 
one.25 

SUITS  UNDER  IMMIGRATION  LAWS 

79.  The  twenty-second  paragraph  of  section  24  of  the  Ju- 
dicial Code  confers  on  the  district  court  jurisdic- 
tion of  all  suits  and  proceedings  regulating  the  im- 
migration of  aliens,  or  under  the  contract  labor 
laws. 

The  growing  sentiment  against  indiscriminate  immigra- 
tion has  resulted  in  gradually  making  the  laws  on  the  sub- 
ject more  stringent.  The  act  of  February  20,  1907,26  regu- 
lates the  subject  in  detail.  The  act  of  April  29,  1902,27  as 
amended  April  27,  1904,28  applies  only  to  Chinese  immigra- 
tion and  residence.  The  third  section  of  the  act  of  Febru- 
ary 20,  1907,  punishing  the  keeping  of  an  alien  woman  for 
purposes  of  prostitution  within  three  years  after  her  entry 
into  the  United  States,  is  unconstitutional.29  But  the  ninth 

2B  Camfleld  v.  TT.  S.,  167  TJ.  S.  518,  17  Sup.  Ct  864,  42  L.  Ed.  260; 
Homer  v.  U.  S.,  185  Fed.  741,  108  C.  C.  A.  79.  See  "Public  Lands," 
Dec.  Dig.  (Key-No.)  §  19;  Cent.  Dig.  §§  25,  26. 

26  34  Stat  898,  c.  1134  (U.  S.  Comp.  St.  Supp.  1911,  p.  499),  amend- 
ed March  4,  1909  (35  Stat.  969-982,  c.  299),  also  March  26,  1910  (36 
Stat.  263,  c.  128  [U.  S.  Comp.  St.  Supp.  1911,  p.  500]). 

27  32  Stat.  176,  c.  641  (U.  S.  Comp.  St.  Supp.  1911,  p.  524). 
2833  Stat.  428,  c.  1630. 

29  Keller  v.  U.  S.,  213  U.  S.  138,  29  Sup.  Ct.  470,  53  L.  Ed.  737,  16 
HUGHES  FED.PB.(2o  ED.) — 13 


194  DISTEICT  COURT — CLASSES   OF  JURISDICTION       (Ch.  9 

section,  prohibiting  the  importation  of  aliens  with  danger- 
ous diseases,  is  valid.80 


SUITS  AGAINST  RESTRAINTS  AND  MONOPOLIES 

80.  The  twenty-third  paragraph  of  section  24  of  the  Judi- 
cial Code  confers  on  the  district  court  jurisdiction 
of  all  suits  and  proceedings  arising  under  any  law 
to  protect  trade  and  commerce  against  restraints 
and  monopolies. 

These  acts  81  have  been  the  subject  of  many  decisions. 
As  they  are  based  upon  the  power  of  Congress  to  regulate 
interstate  commerce,  they  do  not  apply  to  trusts  to  regu- 
late a  local  product  which  has  not  become  the  subject  of 
commerce  between  the  states.82  The  main  act  is  the  Sher- 
man act  of  July  2,  1890. 

It  applies  to  agreements  regulating  rates,  and  to  a  pool- 
ing agreement  between  different  common  carriers  engaged 
in  interstate  commerce,38  but  only  to  agreements  directly 
connected  with  interstate  commerce,  including  the  trans- 
portation, purchase,  sale,  and  exchange  of  commodities  be- 

Ann.  Cas.  1066.  But  the  amendment  of  March  26,  1910,  is  valid. 
Low  Wah  Suey  v.  Backus,  225  U.  S.  460,  32  Sup.  Ct  734,  56  L.  Ed. 
1165.  See  "Aliens,"  Dec.  Dig.  (Key-No.)  §  40;  "Constitutional  Law," 
Dec.  Dig.  (Key-No.)  §  818. 

so  Oceanic  Steam  Nav.  Co.  v.  Stranahan,  214  U.  S.  320,  29  Sup.  Ct. 
671,  53  L.  Ed.  1013.  See  "Aliens,"  Dec.  Dig.  (Key-No.)  §  40. 

si  Act  July  2,  1890,  c.  647,  §  4,  26  Stat.  209  (U.  S.  Comp.  St  1901, 
p.  3201) ;  Act  Aug.  27,  1894,  c.  349,  §  73,  28  Stat.  570  (U.  S.  Comp. 
St.  1901,  p.  3202). 

32  U.  S.  v.  E.  C.  Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct.  249,  39  L.  Ed. 
325.    See  "Monopolies,"  Dec.  Dig.  (Key-No.)  §§  9,  10;    Cent.  Dig.  §§ 
8-10. 

33  U.  S.  v.  Trans-Missouri  Freight  Ass'n,  166  U.  S.  290,  17  Sup.  Ct. 
540,  41  L.  Ed.  1007 ;    U.  S.  v.  Joint  Traffic  Ass'n,  171  U.  S.  505,  569, 
571,  19  Sup.  Ct.  25,  43  L.  Ed.  259.    See  "Monopolies,"  Dec.  Dig.  (Key- 
No.)  §§  10-12. 


§    80)         SUITS   AGAINST   RESTRAINTS   AND   MONOPOLIES          195 

tween  citizens  of  different  states,  and  the  instrumentalities 
by  which  such  commerce  is  conducted.34 

It  applies  to  an  agreement  between  private  corporations 
engaged  in  different  states  in  the  manufacture  and  market- 
ing among  the  different  states  of  iron  pipe.86 

It  applies  to  an  agreement  between  manufacturers  and 
dealers  in  tile  grates  and  mantels  in  the  different  states,  and 
controlling  the  price  of  products  in  those  states.86 

It  applies  to  the  organization  of  a  holding  corporation 
which  bought  up  a  controlling  interest  in  two  competing 
lines  of  transportation  for  the  purpose  of  preventing  com- 
petition between  them.37  It  applies  only  to  undue  re- 
straints of  interstate  or  foreign  commerce.38  The  decisions 
on  the  act  have  been  numerous,  ranging  from  tobacco  to 
tubs.39 

a*  Hopkins  v.  U.  S.,  171  U.  S.  578,  19  Sup.  Ct.  40,  43  L.  Ed.  290; 
Anderson  v.  U.  S.,  171  U.  S.  604,  19  Sup.  Ct.  50,  43  L.  Ed.  300.  See 
"Monopolies,"  Dec.  Dig.  (Key-No.)  §§  10-12. 

ss  Addyston  Pipe  &  Steel  Co.  v.  U.  S.,  175  U.  S.  211,  20  Sup.  Ct.  96, 
44  L.  Ed.  136.  See  "Monopolies,"  Dec.  Dig.  (Key-No.)  §§  10-12,  17. 

se  W.  W.  Montague  &  Co.  v.  Lowry,  193  U.  S.  38,  24  Sup.  Ct.  307, 
48  L.  Ed,  608.  See  "Monopolies,"  Dec.  Dig.  (Key-No.)  §§  10-12,  17. 

37  U.  S.  v.  NORTHERN  SECURITIES  CO.  (C.  C.)  120  Fed.  721; 
ID.,  193  U.  S.  197,  24  Sup.  Ct.  436,  48  L.  Ed.  679.  See  "Monopolies," 
Dec.  Dig.  (Key-No.)  §§  8-10,  17. 

ss  Standard  Oil  Co.  of  New  Jersey  v.  U.  S.,  221  U.  S.  1,  31  Sup.  Ct. 
502,  55  L.  Ed.  619,  34  L.  R.  A.  (N.  S.)  834,  Ann.  Cas.  1912D,  734.  See 
"Monopolies,"  Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig.  §  10. 

3»  See,  as  examples,  U.  S.  v.  American  Tobacco  Co.,  221  U.  S.  106, 
31  Sup.  Ct.  632.  55  L.  Ed.  663 ;  Standard  Sanitary  Mfg.  Co.  v.  U.  S., 
226  U.  S.  20,  33  Sup.  Ct  9,  57  L.  Bd.  107;  U.  S.  v.  Union  Pac.  R. 
Co.,  226  U.  S.  61,  33  Sup.  Ct  53,  57  L.  Ed.  124;  U.  S.  v.  Reading 
Co.,  226  U.  S.  324,  33  Sup.  Ct.  90,  57  L.  Ed.  243.  See  "Monopolies," 
Dec.  Dig.  (Key-No.)  §§  8-20;  Cent.  Dig.  §§  8-14. 


196  DISTRICT  COUBT — CLASSES  OF  JURISDICTION       (Ch.  9 


CLAIMS  OF  INDIANS  FOR  LANDS  UNDER 
TREATIES 

81.  The  twenty-fourth  paragraph  of  section  24  of  the  Ju- 

dicial Code  confers  on  the  district  court  jurisdic- 
tion of  actions,  suits  or  proceedings  involving  the 
right  of  any  Indian  to  any  allotment  of  land. 

This  paragraph  was  amended  December  21,  1911,  by  add- 
ing a  sentence  giving  increased  force  to  the  judgment  or 
decree  in  such  cases. 

This  is  one  of  the  classes  of  jurisdiction  transferred  from 
the  circuit  court.  These  questions  often  get  into  the  courts 
of  the  District  of  Columbia  by  proceedings  against  govern- 
ment officials.40 

SUITS  AGAINST  UNITED  STATES  FOR 
PARTITION 

82.  The  twenty-fifth  paragraph  of  section  24  of  the  Judi- 

cial Code  confers  on  the  district  court  jurisdiction 
of  suits  in  equity  for  partition  where  the  United 
States  is  one  of  the  tenants  in  common  or  joint 
tenants,  the  suit  to  be  in  the  district  where  the 
land  lies. 

This  was  a  jurisdiction  formerly  vested  in  the  circuit 
court,  and  is  based  on  the  act  of  May  17,  1898.41 

40  See,  as  examples  of  such  questions,  Garfield  v.  U.  S.  ex  rel. 
Goldsby,  211  U.  S.  249,  29  Sup.  Ct  62,  53  L.  Ed.  168;  Ballinger  v. 
U.  S.  ex  rel.  Frost,  216  U.  S.  240,  30  Sup.  Ct  338,  54  L.  Ed.  464; 
Henry  Gas  Co.  v.  U.  S.,  191  Fed.  132,  111  C.  C.  A.  612.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  449;  "United  States,"  Dec.  Dig.  (Key-No.)  § 
105. 

*i  30  Stat  416,  c.  339  (U.  S.  Comp.  St.  1901,  p.  516). 


§    84)  UNCLASSIFIED   CASES  197 

SUITS  UNDER  CHINESE  EXCLUSION  LAWS 

83.  These  are  but  a  special  class  of  immigration  and  alien 

suits,  but  are  made  the  subject  of  a  special  section 
of  the  Judicial  Code  (section  25). 

UNCLASSIFIED  CASES 

84.  The  statute  contains  a  saving  clause  conferring  on  the 

district  court  any  power  or  duty  theretofore  ex- 
ercised by  the  circuit  court. 

Scattered  through  the  federal  statutes  are  provisions  con- 
ferring on  the  circuit  court  jurisdiction  to  enforce  the 
rights  or  duties  thereby  created.  Section  289  of  the  Judi- 
cial Code  having  abolished  the  circuit  court,  such  cases 
were  protected  by  section  291,  which  reads: 

"Wherever,  in  any  law  not  embraced  within  this  act,  any 
reference  is  made  to,  or  any  power  or  duty  is  conferred  or 
imposed  upon,  the  circuit  courts,  such  reference  shall,  upon 
the  taking  effect  of  this  act,  be  deemed  and  held  to  refer 
to,  and  to  confer  such  power  and  impose  such  duty  upon, 
the  district  courts." 


198  DISTRICT   COURT — EXTRAORDINARY    WRITS        (Ch.  10 


CHAPTER  X 

THE  DISTRICT  COURT  (Continued)— JURISDICTION  TO  ISSUE 
CERTAIN  EXTRAORDINARY  WRITS 

85.  Ad  Quod  Damnum  or  Condemnation  Proceedings. 

86.  Writ  of  Habeas  Corpus. 

87.  Same — Federal  Jurisdiction. 

88.  Same — When  Jurisdiction  Exercised. 

89.  Same — The  Particular  Federal  Courts  Having  Jurisdiction  to 

Issue. 

90.  Same — Procedure  on  Habeas  Corpus. 

91.  Ne  Exeat. 


AD   QUOD   DAMNUM   OR  CONDEMNATION   PRO- 
CEEDINGS 

85.  Under  the  federal  statutes  several  proceedings  by  con- 
demnation are  authorized,  the  jurisdiction  in  these 
being  now  in  the  district  court. 

1.  The  Act  of  February  22,  1867 1 

This  authorizes  the  Secretary  of  War  to  purchase  such 
real  estate  as  is  necessary  for  national  cemeteries,  or,  in 
case  he  cannot  agree  with  the  owner,  to  enter  upon  and 
appropriate  any  real  estate  which  in  his  judgment  is  suit- 
able and  necessary  for  such  purpose.  In  order  to  secure 
the  rights  of  the  owner,  the  act  provides  that  the  Secretary 
of  War,  or  the  owners,  may  apply  to  the  circuit  or  district 
court  within  any  state  or  district  where  such  real  estate 
is  located  for  the  appointment  of  appraisers;  and  it  gives 
the  court  power,  upon  such  application,  to  so  frame  its 
proceedings  as  to  secure  a  just  and  equitable  appraisement. 
It  further  provides  that  on  payment  of  the  appraised  value 
to  the  owner,  or  into  court  in  case  he  refuses  to  take  it,  the 

i  Rev.  St.  §§  4870-4872  (U.  S.  Comp.  St.  1901,  p.  3375). 


§    85)  CONDEMNATION   PROCEEDINGS  199 

title  shall  be  vested  in  the  United  States,  and  its  jurisdic- 
tion over  such  estate  shall  be  exclusive. 

Since  the  abolition  of  the  circuit  court  by  section  289  of 
the  Judicial  Code  the  proceeding  is  in  the  district  court. 

2.  The  Act  of  April  24,  1888  2 

This  provides  for  the  condemnation  of  such  property  as 
is  necessary  to  maintain,  operate,  or  prosecute  works  for 
the  improvement  of  rivers  or  harbors.  It  provides  that 
the  procedure  shall  be  according  to  the  laws  relating  to 
suits  for  the  condemnation  of  property  of  the  states  where- 
in the  proceedings  may  be  instituted,  and  also  that  they 
shall  be  in  any  court  having  jurisdiction  of  such  proceed- 
ings. 

The  act  of  June  29,  1906,3  extends  this  to  the  case  of  con- 
demnations in  the  name  of  the  United  States  for  the  bene- 
fit of  private  parties  improving  navigation. 

3.  The  Act  of  August  1, 1888  4 

This  is  much  more  general  than  either  of  the  two  preced- 
ing acts,  and  provides  for  condemnation  proceedings, 
whether  to  procure  real  estate  for  the  erection  of  a  public 
building,  or  for  any  other  public  use.  It  provides  that  the 
jurisdiction  of  these  proceedings  shall  be  in  the  circuit  or 
district  wherein  such  real  estate  is  located,  and  that  the 
practice,  pleadings,  forms,  and  modes  of  proceeding  shall 
conform  as  near  as  may  be  to  the  practice,  pleadings, 
forms,  and  mode  of  proceeding  existing  at  the  time  in  like 
causes  in  the  courts  of  record  of  the  state  within  which 
such  circuit  or  district  courts  are  held.  This  is  much  the 
most  general  act,  and  the  one  under  which  these  proceed- 
ings are  usually  instituted. 

By  section  7  of  the  act  of  June  17,  1902,5  the  Secretary  of 

2  25  Stat  94,  c.  194  (U.  S.  Comp.  St.  1901,  p.  3525). 
«  34  Stat.  632  (U.  S.  Coinp.  St.  Supp.  1911,  p.  1544). 
*  25  Stat.  357,  c.  728  (U.  S.  Comp.  St  1901,  p.  2516). 
5  32  Stat.  389  (U.  S.  Comp.  St.  Supp.  1911,  p.  666). 


200  DISTRICT   COURT — EXTEAORDINAEY    WRITS        (Ch.  10 

the  Interior  is  authorized  to  resort  to  condemnation  pro- 
ceedings for  irrigation  purposes. 

4.  The  Act  of  August  18, 1890  6 

This  provides  for  the  condemnation  by  the  Secretary 
of  War  of  any  land,  or  right  pertaining  thereto,  needed 
for  fortifications  or  coast  defense.  It  assimilates  the  pro- 
ceeding to  the  state  practice,  and  provides  that  it  shall  be 
in  any  court  having  jurisdiction  of  such  proceedings. 

The  United  States  have  jurisdiction  to  condemn  land  for 
public  purposes.  This  is  an  attribute  of  sovereignty,  and 
essential  to  the  exercise  of  its  governmental  powers. 
Without  it  the  country  might  be  at  the  mercy  of  a  foreign 
enemy,  and  the  internal  administration  of  the  government 
at  the  mercy  of  the  separate  states.7 

The  general  principles  which  regulate  all  condemnation 
proceedings  apply  in  these  matters.  It  is  not  necessary 
to  have  a  jury  in  the  sense  of  a  common-law  jury  of  twelve 
men.  The  procedure  may  provide  for  a  simple  jury  of  in- 
quest or  commission  to  pass  upon  the  single  question  of 
damages,  and  need  not  require  unanimity.8 

The  property  specially  benefited  may  be  charged  with 
an  equitable  portion  of  the  benefit,  or  the  court  may  pro- 
vide that  the  special  benefits  to  the  special  tract  may  be 
set  off  against  the  damages.8 

e  26  Stat.  316,  c.  797  (U.  S.  Comp.  St.  1901,  p.  2518). 

7  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed. 
510;    Burley  v.  U.  S.,  179  Fed.  1,  102  C.  C.  A.  429,  33  L.  R.  A.  (N. 
S.)  807.    See  "Eminent  Domain,"  Dec.  Dig.  (Key-No.)  §  5;   Cent.  Dig. 
§§  19-23. 

8  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct  397,  40  L.  Ed. 
510;    Bauman  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct  966,  42  L.  Ed.  270; 
U.  S.  v.  Beaty  (D.  C.)  198  Fed.  284.     See  "Eminent  Domain,"  Dec. 
Dig.  (Key-No.)  §  209;   Cent.  Dig.  §  548. 

a  Shoemaker  v.  U.  S.,  147  U.  S.  282,  13  Sup.  Ct.  361,  37  L.  Ed.  170 ; 
Baunian  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct  966,  42  L.  Ed.  270.  Al- 
lowance may  be  made  for  injury  to  that  part  of  the  land  not  taken. 
U.  S.  v.  Grizzard,  219  U.  S.  180,  31  Sup.  Ct.  162,  55  L.  Ed.  165,  31 
L.  R.  A.  (N.  S.)  1135.  See  "Eminent  Domain,"  Dec.  Dig.  (Key-No.)  § 
145;  Cent  Dig.  §§  378-389. 


§   85)  CONDEMNATION   PROCEEDINGS  201 

An  act  of  this  sort  need  not  require  payment  to  the  own- 
er in  advance  of  entry,  but  may  give  a  right  of  entry  on 
the  land  by  the  payment  of  money  into  court.10 

The  question  what  constitutes  a  public  use  has  received 
a  very  liberal  construction.  In  United  States  v.  Gettys- 
burg Electric  Ry.  Co.,11  it  was  held  that  the  preservation 
of  the  Gettysburg  battlefield  constituted  such  a  public  use, 
and  that  a  statute  authorizing  the  same  was  valid,  and 
hence  a  procedure  against  a  railway  company,  condemn- 
ing part  which  had  already  been  devoted  by  it  to  the  pub- 
lic use,  was  upheld.  So,  in  Shoemaker  v.  United  States,12 
the  validity  of  an  act  authorizing  the  condemnation  of 
land  for  a  public  park  in  Washington  City  was  upheld. 
As  the  District  of  Columbia  is  under  national  control,  this 
decision  is  tantamount  to  the  doctrine  that,  within  lands 
over  which  the  United  States  have  exclusive  jurisdiction, 
their  power  of  eminent  domain  is  as  extensive  as  that  of 
the  states;  but  whether  the  United  States  would  have 
jurisdiction  to  condemn  a  park  in  territory  not  under  the 
exclusive  jurisdiction  of  the  federal  government,  as,  for  in- 
stance, in  a  state,  is  not  settled  by  this  decision. 

An  act  of  Congress  authorizing  condemnation  proceed- 
ings may  vest  the  power  of  condemnation  in  the  federal 
courts,  or  may  delegate  it  to  the  state  courts.13 

10  Cherokee  Nation  v.  Railway  Co.,  135  U.  S.  641,  10  Sup.  Ct.  965, 
34  L.  Ed.  295 ;  U.  S.  v.  O'Neill  (D.  C.)  198  Fed.  677.  See  "Eminent 
Domain,"  Dec.  Dig.  (Key-No.)  §§  74-80;  Cent.  Dig.  §§  188-214. 

11 160  U.  S.  668,  IB  Sup.  Ct.  427,  40  L.  Ed.  576.  Irrigation  ditches, 
although  for  private  parties,  are  a  public  use  under  the  peculiar  con- 
ditions of  some  of  the  arid  states.  Fallbrook  Irrigation  Dist.  v. 
Bradley,  164  U.  S.  112,  17  Sup.  Ct.  56,  41  L.  Ed.  369 ;  Clark  v.  Nash, 
198  U.  S.  361,  25  Sup.  Ct.  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171.  See 
"Eminent  Domain,"  Dec.  Dig.  (Key-No.)  §§  41,  47;  Cent.  Dig.  §§  86, 
130,  131. 

12  147  U.  S.  282,  13  Sup.  Ct.  361,  37  L.  Ed.  170.  See  "Eminent  Do- 
main," Dec.  Dig.  (Key-No.)  §  41;  Cent.  Dig.  §  86. 

is  U.  S.  v.  Jones,  109  U.  S.  513,  3  Sup.  Ct.  346,  27  L.  Ed.  1015.  See 
"Eminent  Domain,"  Dec.  Dig.  (Key-No.)  §§  5,  71;  Cent.  Dig.  §§  19-23, 
180. 


202  DISTRICT   COURT — EXTRAORDINARY   WRITS        (Ch.  10 

A  petition  under  these  acts  for  the  right  to  condemn 
should  allege  on  its  face  the  authority  and  the  necessity 
for  instituting  the  proceedings,  and  the  importance  of  the 
property  for  the  public  use  in  contemplation.14 

The  above  provision  as  to  condemnation  proceedings, 
assimilating  them  to  state  procedure  to  the  same  purpose, 
does  not  require  absolute  identity  of  procedure.  They 
need  only  approximate  the  state  procedure.15 

A  proceeding  of  this  character  is  in  nature  a  common- 
law  proceeding,  and  hence  is  reviewable  only  by  writ  of 
error.16 

WRIT  OF  HABEAS  CORPUS 

86.  The  general  principles  of  habeas  corpus  in  the  federal 
courts  are  the  same  as  those  prevailing  under  the 
common  law. 

This  writ  is  not  a  writ  of  error,  and  cannot  be  used  to 
correct  mere  errors  or  irregularities  in  procedure. 
It  raises  only  the  question  of  jurisdiction,  or  pow- 
er of  the  party  to  hold  the  applicant  in  custody. 

Nature  of  the  Writ 

This  is  the  writ  which  has  played  such  an  important  part 
in  the  political  and  legal  history  of  the  English  race.  Its 
purpose  is  to  inquire  whether  a  subject  is  illegally  re- 
strained of  his  liberty.  Though  it  affects  criminal  pro- 
ceedings, it  is  in  its  nature  a  civil  writ.17  In  order  to  au- 

i*  In  re  Montgomery  (D.  C.)  48  Fed.  896;  In  re  Manderson,  51 
Fed.  501,  2  C.  C.  A.  490.  See  "Eminent  Domain,"  Dec.  Dig.  (Key-No.) 
§  191;  Cent.  Dig.  §§  509-518. 

is  CHAPPELL  v.  U.  S.,  160  IT.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed. 
510.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  341;  Cent.  Dig.  §  899. 

IB  Murhard  Estate  Co.  v.  Portland  &  S.  Ry.  Co.,  163  Fed.  194,  90 
C.  C.  A.  64.  See  "Eminent  Domain,"  Dec.  Dig.  (Key-No.)  §  251;  Cent. 
Dig.  §  658. 

17  Cross  v.  Burke,  146  U.  S.  82,  13  Sup.  Ct.  22,  36  L.  Ed.  896.  See 
'•Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  1;  Cent.  Dig.  §§  1,  S. 


§    86)  WRIT   OF   HABEAS   CORPUS  203 

thorize  the  issue  of  the  writ,  there  must  be  some  actual- 
restraint  of  liberty.  A  leading  case  on  this  subject  is 
Wales  v.  Whitney.18  There  a  medical  director  in  the 
navy,  who  resided  in  Washington,  received  a  letter  from 
the  Secretary  of  the  Navy  notifying  him  that  he  was  placed 
under  arrest,  and  commanding  him  to  remain  within  the 
limits  of  the  city  of  Washington  pending  proceedings 
against  him  by  court-martial.  No  actual  process,  how- 
ever, was  issued,  and  there  was  no  seizure  of  his  person. 
His  right  to  the  writ  was  denied,  as  there  was  nothing  to 
show  such  a  restraint  as  justified  the  issue  of  the  writ,  for 
it  would  have  been  impossible  for  the  Secretary  of  the 
Navy  or  any  one  else,  on  the  return  to  the  writ,  to  say  that 
he  held  custody  of  the  applicant. 

The  fundamental  underlying  principle  as  to  the  issue  of 
the  writ  is  that  it  is  not  a  writ  of  error,  and  cannot  be  used 
to  correct  mere  errors  or  irregularities  in  procedure.  It 
raises  only  the  question  of  jurisdiction,  or  power  of  the 
party  to  hold  the  applicant  in  custody.19  The  Supreme 
Court  has  had  occasion  at  almost  every  term  to  reiterate 
this  principle,  as  the  desperate  struggles  of  convicted  crim- 
inals to  postpone  the  inevitable,  result  in  constant  applica- 
tions by  habeas  corpus  to  review  the  action  of  the  court 
or  other  body  by  whom  the  sentence  has  been  imposed. 
Some  illustrations  of  the  method  in  which  this  general 
principle  has  been  applied  will  better  serve  to  show  its 
limits.  The  courts  will  not  permit  it  to  be  used  as  a  means 
of  collaterally  questioning  the  propriety  of  injunction  or- 

is  114  U.  S.  564,  5  Sup.  Ct.  1050,  29  L.  Ed.  277.  It  does  not  lie 
while  the  prisoner  is  at  large  on  bail.  Sibray  v.  U.  S.,  185  Fed.  401, 
107  C.  C.  A.  483.  See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  9; 
Cent.  Dig.  §§  10-12. 

i»Keizo  v.  Henry,  211  U.  S.  146,  29  Sup.  Ct.  41,  53  L.  Ed.  125; 
Harlan  v.  McGowim,  218  U.  S.  442,  31  Sup.  Ct.  44,  54  L.  Ed.  1101,  21 
Ann.  Cas.  849;  Glasgow  v.  Moyer,  225  U.  S.  420,  32  Sup.  Ct  753,  56 
L.  Ed.  1147;  Ex  parte  Spencer,  228  U.  S.  652,  33  Sup.  Ct.  709.  57 
L.  Ed.  — .  See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §§  4,  30,  96; 
Cent.  Dig.  §§  4,  25,  81. 


204  DISTRICT  COURT — EXTRAORDINARY   WRITS        (Ch.  10 

ders.20  It  cannot  be  used  for  the  purpose  of  reviewing  a 
mere  question  of  regularity  on  proceedings  to  punish  for 
contempt.  For  instance,  where  a  party  had  been  punished 
for  creating  a  disorder  in  the  actual  presence  of  the  court, 
or  for  attempting  to  bribe  a  witness  in  a  jury  room  or  hall 
adjoining  the  courtroom,  the  writ  was  refused,  as  the  court 
had  jurisdiction  to  punish  such  contempts,  and  the  ques- 
tion whether  the  contempt  had  actually  been  committee! 
or  not  was  a  question  of  fact  which  could  not  be  reviewed 
by  such  a  writ.21 

It  cannot  be  used  to  review  proceedings  before  a  United 
States  commissioner  in  the  examination  of  a  poor  debtor 
on  a  judgment  of  a  United  States  court,  or  in  holding  a 
party  arrested  under  foreign  extradition  papers,  if  it  ap- 
peared that  the  crime  for  which  the  party  was  extradited 
was  one  covered  by  the  extradition  treaty.22 

It  cannot  be  used  as  an  appellate  writ  for  the  purpose  of 
reviewing  proceedings  in  court-martial,  where  the  court- 
martial  had  jurisdiction  of  the  crime.23  But  where  the 
court  was  illegally  constituted,  as  where  a  volunteer  was 
being  tried  by  a  court  composed  entirely  of  regulars,  such 
defect  became  jurisdictional,  and  habeas  corpus  would  lie.24 


20  In  re  DEBS,  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed.  1092.    See 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  19;  Cent.  Dig.  §  17. 

21  Ex  parte  Savin,  131  U.  S.  267,  9  Sup.  Ct.  699,  33  L.  Ed.  150. 
See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §§  81-96; 
"Contempt,"  Cent.  Dig.  §  219. 

22  Stevens  v.  Fuller,  136  U.  S.  468,  10  Sup.  Ct.  911,  34  L.  Ed.  461 ; 
Terlinden  v.  Ames,  184  U.  S.  270,  22  Sup.  Ct.  484,  46  L.  Ed.  534.    See 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  92;    Cent.  Dig.  §§  81-96; 
"Extradition,"  Cent.  Dig.  §  45. 

23  WALES  v.  WHITNEY,  114  U.  S.  564,  5  Sup.  Ct.  1050,  29  L.  Ed. 
277;   In  re  Grimley,  137  U.  S.  147,  11  Sup.  Ct.  54,  34  L.  Ed.  636.    See 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §§  9,  92;   Cent.  Dig.  §§  10,  11, 
81-96. 

24  McClaughry  v.  Deming,  186  U.  S.  49,  22  Sup.  Ct  786,  46  L.  Ed. 
1049.     See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  95;    Cent.  Dig. 


§    86)  WKIT   OF   HABEAS   COfiPUS  205 

When,  however,  it  is  said  that  it  will  only  review  ques- 
tions of  the  jurisdiction  of  a  court  or  committing  author- 
ity, it  is  not  meant  that  it  will  not  lie  at  all  if  the  commit- 
ting authority  originally  had  jurisdiction.  There  are  many 
cases  where  the  committing  authority  had  jurisdiction  in 
the  first  instance  over  the  general  subject  or  crime,  but  had 
no  jurisdiction  to  enter  the  special  order  complained  of. 
In  such  case  habeas  corpus  would  lie  to  question  the  pow- 
er to  make  such  an  order.  For  instance,  in  Re  Bain  25 
the  court  permitted  the  amendment  of  an  indictment  which 
had  been  regularly  found  in  the  first  instance,  and  of 
which  the  trial  court  had  jurisdiction.  The  Supreme  Court 
held  on  habeas  corpus  that  the  effect  of  permitting  the 
amendment  of  the  indictment  made  it  no  indictment  at 
all,  as  an  indictment  was  not  amendable,  and  that  there- 
fore any  sentence  entered  upon  such  amended  indictment 
was  necessarily  void,  and  habeas  corpus  would  lie. 

In  Ex  parte  Nielsen  26  the  proceedings  were  regular  up 
to  the  sentence,  but  the  accused  was  sentenced  a  second 
time  for  the  same  offense.  The  court  permitted  a  habeas 
corpus  in  such  case,  as  the  error  did  not  commence  until 
after  sentence. 

Under  state  extradition  proceedings  it  is  usually  com- 
petent to  raise  the  question  whether  the  party  is  a  fugitive 
from  justice  on  habeas  corpus.  The  distinction  is  illus- 
trated in  the  cases  of  Cook  v.  Hart 27  and  Hyatt  v.  Peo- 
ple.28 In  the  first  case  extradition  papers  had  been  issued, 
and  the  accused  had  been  taken  back  under  them  to  the 

25  121  U.  S.  1,  7  Sup.  Ct.  781,  30  L.  Ed.  849.    See  "Habeas  Corpus," 
Dec.  Dig.  (Key-No.)  §  30;  Cent.  Dig.  §  25. 

26  131  U.  S.  176,  9  Sup.  Ct.  672,  33  L.  Ed.  118.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  81;    Cent.  Dig.  §  27. 

27  146  U.  S.  183,  13  Sup.  Ct.  40,  36  L.  Ed.  934.     See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §§  81-96;  "Extradition," 
Cent.  Dig.  §  45. 

28  188  U.  S.  691,  23  Sup.  Ct.  456,  47  L.  Ed.  657.    See  "Habeas  Cor- 
pus," Dec.  Dig    (Key-No.)  §  92;  Cent.  Dig*  §§  82-96;  "Extradition," 
Cent.  Dig.  §  45. 


206  DISTRICT  COUET — EXTRAORDINARY   WRITS         (Ch.  10 

state  whence  they  were  issued,  and  tried.  The  court  held 
that  in  such  case  he  could  set  up,  in  the  state  court  where 
he  was  being  tried,  the  defense  that  he  was  not  a  fugitive 
from  justice,  and  would  not  be  permitted  to  raise  it  by 
habeas  corpus  afterwards.  In  the  second  case,  when  he 
was  arrested  he  resisted  the  attempt  to  take  him  back  to 
the  state  of  issue,  and  applied  for  a  habeas  corpus,  show- 
ing that  on  the  date  when  the  crime  was  alleged  to  have 
been  committed  he  was  not  within  the  state  where  it  was 
alleged  to  have  been  committed.  The  court  held  that  in 
such  case  the  writ  would  lie.  In  fact,  it  is  a  general  doc- 
trine that  the  courts  lean  against  considering,  on  habeas 
corpus,  questions  that  could  be  raised  before  the  commit- 
ting or  trying  court,  though,  if  the  judgment  of  such  court 
is  absolutely  void,  the  writ  may  issue.2" 

The  writ  will  not  lie  to  attack  the  validity  of  proceedings 
before  a  de  facto  judge.30 

SAME— FEDERAL  JURISDICTION 

87.  The  federal  courts  have  power  to  issue  the  writ  in  cases 
arising  under  the  Constitution  or  laws  of  the 
United  States,  or  in  connection  with  federal  pro- 
cess. 

This  jurisdiction  is  set  out  in  section  753  of  the  Revised 
Statutes.31  The  federal  courts  have  no  general  common- 
law  jurisdiction  to  inquire  into  any  restraint  of  liberty. 
They  can  only  take  cognizance  on  habeas  corpus  of  ques- 
tions arising  under  the  Constitution  or  laws  of  the  United 
States,  or  in  connection  with  federal  process.  They  can- 
as  Ex  parte  Nielsen,  131  U.  S.  176,  9  Sup.  Ct  672,  33  L.  Ed.  118; 
Greene  v.  Henkel,  183  U.  S.  249,  22  Sup.  Ct.  218,  46  L.  Ed.  177.  See 
•'Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §§  28,  94;  Cent.  Dig.  §§  23,  82,. 
92. 

so  Ex  parte  Ward,  173  U.  S.  452,  19  Sup.  Ct  459,  43  L.  Ed.  765, 
See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  28;   Cent.  Dig.  §  23. 
si  U.  S.  Comp.  St.  1901,  p.  592. 


§    87)  WBIT   OF   HABEAS   CORPUS  207 

not  consider  questions  of  restraint  of  liberty  arising  simply 
from  acts  violating  state  laws  or  state  constitutions.32 

In  Re  Burruss  33  the  court  refused  to  consider  the  ques- 
tion of  disputed  right  to  the  custody  of  a  child,  not  de- 
pending in  any  way  upon  any  federal  law. 

In  Re  Duncan 84  it  refused  to  consider  the  question 
whether  a  law  was  passed  according  to  the  requirements 
of  the  state  constitution,  holding  that  such  was  not  a  fed- 
eral question,  and  raised  no  question  relating  to  due  pro- 
cess of  law. 

In  Andrews  v.  Swartz  35  the  failure  of  a  state  to  give  an 
appeal  in  criminal  cases  was  held  not  to  raise  a  federal 
question,  nor  a  violation  of  the  provisions  relating  to  due 
process  of  law,  and  therefore  not  to  be  questioned  by 
habeas  corpus. 

In  Howard  v.  Fleming  36  the  same  principle  was  repeat- 
ed, where  an  attempt  was  made  to  question  whether  an 
indictment  charged  a  crime  in  a  state  court,  or  whether  it 
was  due  process  of  law  to  fail  to  instruct  the  jury  on  the 
question  of  the  presumption  of  innocence. 

In  Ex  parte  Kinney  37  it  was  held  that  the  violation  of  a 
state  statute  forbidding  intermarriage  between  white  and 
colored  persons  raised  no  federal  question. 

On  the  other  hand,  the  court  has  given  a  liberal  con- 

• 

32  Storti  v.  Massachusetts,  183  U.  S.  138,  22  Sup.  Ct.  72,  46  L.  Ed. 
120.    See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  45;    Cent.  Dig.  §§ 
38-45;    "Courts,"  Gent.  Dig.  §§  804,  990,  1876-1385. 

33  136  U.  S.  586,  10  Sup.  Ct.  850,  34  L.  Ed.  500.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  1376-1385. 

3*  139  U.  S.  449,  11  Sup.  Ct  573,  35  L.  Ed.  219.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  1376-1385. 

ss  156  U.  S.  272,  15  Sup.  Ct.  389,  39  L.  Ed.  422.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45. 

se  191  U.  S.  126,  24  Sup.  Ct.  49,  48  L.  Ed.  121.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45. 

873  Hughes,  9,  Fed.  Cas.  No.  7,825.  See  "Habeas  Corpus,"  Dec. 
Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-^5. 


208  DISTRICT  COURT — EXTRAORDINARY   WRITS        (Ch.  10 

struction  to  the  clause  of  section  753  of  the  Revised  Stat- 
utes, allowing  the  writ  where  the  applicant  is  in  custody 
for  an  act  done  or  committed  in  pursuance  of  a  law  of  the 
United  States  in  cases  of  urgency.  In  the  great  case  of 
In  re  Neagle  38  it  became  necessary  to  protect  Mr.  Justice 
Field  from  violence  while  holding  his  court  in  California, 
and  while  going  to  and  proceeding  therefrom ;  and  the  de- 
partment of  justice  appointed  a  special  deputy  to  accom- 
pany him  and  protect  him.  There  was  no  special  federal 
statute  authorizing  the  protection  of  judges  in  such  cases. 
.Neagle,  while  accompanying  the  judge,  shot  and  killed  a 
man  by  the  name  of  Terry,  who  was  in  the  act  of  making 
a  brutal  assault  upon  the  judge,  and  who  but  a  short  time 
before  had  taken  part  in  creating  a  disorder  in  the  court- 
room. Neagle  was  arrested  in  the  state  court  and  charged 
with  murder.  He  was  released  on  habeas  corpus,  the 
court  holding  that  his  custody  was  for  an  act  done  or  com- 
mitted in  pursuance  of  a  law  of  the  United  States,  and 
that  it  could  and  should  protect  him  on  habeas  corpus,  un- 
der such  circumstances. 

In  Boske  v.  Comingore  89  the  court  discharged  on  habeas 
corpus  an  internal  revenue  officer  who  had  been  arrested 
for  refusing  to  produce  records  in  a  state  court,  holding 
that  his  right  to  refuse  to  produce  the  records  depended  up- 
on the  federal  law. 

Concurrent  State  Jurisdiction 

But  while  the  federal  courts  have  jurisdiction  to  issue 
the  writ  in  cases  involving  a  federal  question,  the  state 
courts  have  to  a  certain  extent  a  concurrent  jurisdiction 
with  them.  They  are  just  as  much  as  the  federal  courts 

38  135  U.  S.  1,  10  Sup.  Ct  658,  34  L.  Ed.  55.  See,  also,  Hunter  v. 
Wood,  209  U.  S.  205,  28  Sup.  Ct  472,  52  L.  Ed.  747 ;  Ex  parte  Bart- 
lett  (D.  C.)  197  Fed.  98.  See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  § 
45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent.  Dig.  §§  1376-1385. 

3»  177  U.  S.  459,  20  Sup.  Ct.  701,  44  L.  Ed.  846.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  1376-1385. 


§    88)  WBIT   OF  HABEAS   COBPUS  209 

the  guardians  of  rights  arising  under  the  federal  Constitu- 
tion, and  are  just  as  much  required  to  enforce  such  rights 
as  the  supreme  law  of  the  land.  Hence  a  party  illegally 
restrained  for  an  act  involving  his  rights  under  the  federal 
Constitution  can  appeal  on  habeas  corpus  to  such  state 
courts  as  have  jurisdiction.  But  this  is  subject  to  the 
qualification  that  the  state  courts  cannot  issue  a  habeas 
corpus  which  would  interfere  with  the  custody  of  an  of- 
ficer of  the  federal  court,  or  any  officer  of  the  United 
States,  as  such  power  would  inevitably  bring  on  conflict 
and  hamper  the  powers  of  the  federal  government.40 

In  such  case,  if  the  state  court  decides  against  the  fed- 
eral right,  an  appeal  lies  to  the  Supreme  Court  under  sec- 
tion 237  of  the  Judicial  Code,  which  is  the  present  form  of 
the  famous  twenty-fifth  section  of  the  judiciary  act  of  1789. 


88.  While  the  federal  courts  have  jurisdiction  to  issue  the 
writ  when  a  federal  question  is  involved,  they  are 
disinclined  to  exercise  that  jurisdiction,  and  will 
not  issue  it  except  under  special  circumstances  of 
urgency. 

This  principle  applies  with  special  force  when  they  are 
asked  to  issue  it  to  affect  proceedings  in  state  courts. 
They  have  more  than  once  said  that  it  is  a  delicate  juris- 
diction, and  that  all  the  presumptions  are  against  interfer- 
ing with  the  ordinary  administration  of  justice  in  state 
courts.  As  a  writ  of  error  lies  from  the  state  court  of  last 
resort  in  case  of  a  decision  adverse  to  the  federal  right, 

40R0bb  v.  Connelly,  111  U.  S.  624,  4  Sup.  Ct.  544,  28  L.  Ed.  542; 
In  re  Royall,  117  U.  S.  241,  6  Sup.  Ct.  734,  29  L.  Ed.  868;  Minne- 
sota v.  Brundage,  180  U.  S.  499,  21  Sup.  Ct  455,  45  L.  Ed.  640.  See 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45; 
"Courts,"  Cent.  Dig.  §§  1816-1S85. 

HUGHES  FED.PB.(2o  ED.) — 14 


210  DISTRICT   COUET — EXTBAOEDINABY   WEIT8        (Ch.  10 

they  will  usually  leave  the  applicant  to  his  writ  of  error, 
as  it  gives  him  equal  protection.41 

In  Re  Wood  42  they  refused  to  issue  the  writ  when  the 
federal  question  raised  was  that  negroes  were  excluded 
from  a  jury  contrary  to  the  civil  rights  act.  Such  ques- 
tions should  be  raised  in  the  state  court,  and  a  writ  of  er- 
ror taken  in  the  event  of  an  adverse  decision. 

In  State  of  New  York  v.  Eno  43  the  writ  was  refused  to 
a  state  prosecution  for  violation  of  an  offense  which  could 
also  have  been  punished  in  the  federal  court  under  the 
national  banking  act,  the  court  holding  that  the  proper 
process  was  writ  of  error. 

In  Baker  v.  Grice  44  the  allegation  of  the  application  for 
the  writ  was  that  the  Texas  anti-trust  law  violated  the  fed- 
eral Constitution.  There  was  nothing  to  show  that  the 
applicant  would  be  in  any  way  prejudiced  by  leaving  him 
to  his  writ  of  error,  and  he  was  accordingly  left  to  that 
remedy. 

In  Minnesota  v.  Brundage  *5  a  writ  of  error  was  asked 
by  a  party  arrested  for  a  violation  of  a  state  act  regulating 
the  sale  of  dairy  products,  and  the  applicant  was  left  to  his 
writ  of  error  for  the  same  reason. 

On  the  other  hand,  an  instance  of  the  special  circum- 
stances under  which  the  writ  issues  is  In  re  Medley.46 

41  Ex  parte  Blodgett  (D.  C.)  192  Fed.  77.    See  "Habeas  Corpus," 
Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45. 

42  140  U.  S.  278,  11  Sup.  Ct.  738,  35  L.  Ed.  505.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45. 

43  155  u.  S.  89,  15  Sup.  Ct.  30,  39  L.  Ed.  80.    See  "Habeas  Corpus," 
Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45;   "Courts,"  Cent.  Dig. 
§§  1316-1885. 

44  169  U.  S.  284,  18  Sup.  Ct.  323,  42  L.  Ed.  748.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45;   "Courts,"  Cent. 
Dig.  §§  1876-1385. 

45  180  U.  S.  499,  21  Sup.  Ct  455,  45  L.  Ed.  640.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45;   "Courts,"  Cent. 
Dig.  §§  1376-1885. 

46  134  U.  S.  160,  10  Sup.  Ct.  384,  33  L.  Ed.  835.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45;   "Courts,"  Cent. 
Dig.  §§  1376-1385. 


§  89)  WBIT  OF  HABEAS  COEPU8  21 L 

There  a  state  law  had  been  passed  changing  materially  the 
method  of  punishment,  which  made  it  amenable  to  the  ob- 
jection of  being  an  ex  post  facto  law.  The  change  in  the 
method  of  punishment,  however,  was  left  largely  to  the 
keeper  of  the  prison,  and  could  not,  in  the  nature  of  things, 
be  inflicted  until  after  sentence.  In  such  case  the  court 
held  that  the  writ  would  lie,  as  it  was  too  late  then  to  as- 
sign errors  to  a  judgment  in  the  state  court. 

In.  re  Loney  47  involved  an  application  for  the  writ  by  a 
party  who  had  been  arrested  in  a  state  court  for  perjury 
in  a  congressional  contested  election  case,  the  arrest  being 
made  immediately  after  he  left  the  stand.  The  court  held 
that  such  special  circumstance  authorized  the  issue  of  the 
writ. 

In  re  Neagle  *8  and  Boske  v.  Comingore,48  where  the 
writ  was  allowed,  have  been  mentioned  in  another  con- 
nection. 


SAME— THE   PARTICULAR   FEDERAL   COURTS 
HAVING  JURISDICTION  TO  ISSUE 

89.  Sections  751  and  752  of  the  Revised  Statutes60  give 
this  power  to  the  Supreme  Court  and  the  circuit 
courts  and  district  courts  and  their  several  justices 
or  judges  within  their  respective  jurisdictions,  but 
by  section  289  of  the  Judicial  Code  the  circuit 
court  is  eliminated. 

4T  134  U.  S.  372,  10  Sup.  Ct.  584,  33  L.  Ed.  949.  See  "Habeas  Cor- 
pus" Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  1376-1385. 

48  135  U.  S.  1, 10  Sup.  Ct.  658,  35  L.  Ed.  55.    See  "Habeas  Corpus," 
Dec.  Dig.  (Key-No.)  §  45;   Cent.  Dig.  §§  38-45;   "Courts,"  Cent.  Dig. 
§§  1316-1385. 

49  177  U.  S.  459,  20  Sup.  Ct.  701,  44  L.  Ed.  846.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  131/6-1385. 

50  U.  S.  Comp.  St  1901,  p.  592. 


212  DISTBICT   COURT — EXTRAORDINARY   WRITS        (Ch.  10 

The  district  court  can  issue  the  writ  only  in  its  own  ter- 
ritorial jurisdiction.51  When  it  is  asked  from  a  single 
judge,  he  naturally  is  the  more  cautious  not  to  interfere 
with  proceedings  in  a  state  court.  He  is  also  more  disin- 
clined than  courts  usually  are  to  pronounce  a  doubtful  act 
of  Congress  unconstitutional.52 

The  Supreme  Court  also  has  jurisdiction  to  issue  the 
writ;  in  fact,  as  the  jurisdiction  of  the  Supreme  Court  ex- 
tends over  the  whole  United  States,  a  Supreme  Court 
justice  may  issue  it  anywhere,  though  on  the  return  he 
would  be  apt  to  refer  it  for  final  decision  to  the  full  court.53 

For  a  long  time  there  was  no  appeal  to  the  Supreme 
Court  in  criminal  matters;  nor  is  there  now,  except  as  in- 
cidental to  constitutional  and  other  questions  of  that  na- 
ture. In  such  cases  it  was  cautious  not  to  permit  the  writ 
to  be  used  as  a  writ  of  error  to  the  inferior  federal  courts. 
On  application  to  it  for  the  writ  in  such  cases,  it  would 
only  consider  the  jurisdiction  of  the  court.  In  Ex  parte 
Carll 54  it  held  that  it  would  ,only  consider  the  power  of  the 
lower  authority  to  commit  for  the  crime  charged.  In 
Re  Lancaster  55  it  refused  to  issue  the  writ  to  the  circuit 
court  when  the  writ  attempted  to  raise  a  question  on  an 
indictment  which  could  have  been  raised  in  the  circuit 


si  Ex  parte  Gouyet  (D.  C.)  175  Fed.  230.  See  "Habeas  Corpus," 
Dec.  Dig.  (Key-No.)  §§  45,  48;  Cent.  Dig.  §§  38-45;  "Courts,"  §§  805, 
1376-1385. 

52  u.  S.  v.  Ames  (C.  C.)  95  Fed.  453.    See  "Habeas  Corpus,"  Dec. 
Dig.  (Key-No.)  §  45;    Cent.  Dig.  §§  38-45;    "Courts,"  Cent.  Dig.  §§ 
805,  1376-1385. 

53  Ex  parte  Clarke,  100  U.  S.  399,  25  L.  Ed.  715.    This  jurisdiction 
is  in  nature  appellate,  though  not  so  in  form.    In  re  Virginia,  100  U. 
S.  339,  25  L.  Ed.  676.     See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  § 
45;    Cent.  Dig.  §§  38-45;    "Courts,"  Cent.  Dig.  §§  990,  1376-1385. 

64  106  U.  S.  521,  1  Sup.  Ct.  535,  27  L.  Ed.  288.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  805,  1S76-13S5. 

ss  137  U.  S.  393,  11  Sup.  Ct.  117,  34  L.  Ed.  713.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  1376-1385. 


§    90)  WRIT   OF   HABEAS   CORPUS  213 

court  by  motion  to  quash.  In  Re  Swan,56  which  was  a 
contempt  proceeding  for  interfering  with  the  custody  of 
a  federal  receiver,  it  refused  to  discharge  the  applicant  on 
habeas  corpus. 

The  Supreme  Court,  also,  is  reluctant  to  issue  the  writ 
when  an  inferior  court  may  do  so  with  equal  conven- 
ience.57 

The  circuit  court  of  appeals  has  no  authority  to  issue  the 
writ  as  an  independent  proceeding,  though  it  may  to  pro- 
tect a  jurisdiction  acquired  on  other  grounds.68 


SAME— PROCEDURE  ON  HABEAS  CORPUS 

90.  Section  754  of  the  Revised  Statutes  59  requires  that  the 
application  shall  be  made  by  complaint  in  writ- 
ing, signed  by  the  person  for  whose  relief  it  is  in- 
tended, setting  forth  the  facts  concerning  the  de- 
tention of  the  party  restrained,  in  whose  custody 
he  is  detained,  and  by  virtue  of  what  claim  or  au- 
thority, if  known;  and  that  the  facts  set  forth  in 
the  complaint  shall  be  verified  by  the  oath  of  the 
person  making  the  application. 

Requisites 

This  provision  that  it  must  be  signed  by  the  party  for 
whose  relief  it  is  intended,  and  that  he  must  make  oath  to 
it,  seems  to  be  directory  only,  and  has  not  been  rigidly  en- 

06  150  U.  S.  637,  14  Sup.  Ct.  225,  37  L.  Ed.  1207.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45;  "Courts,"  Cent. 
Dig.  §§  1816-1385. 

57  in  re  Lincoln,  202  U.  S.  178,  26  Sup.  Ct.  602,  50  L.  Ed.  984.    See 
"Habeas  Corpus,"  Dec.  Dig.   (Key-No.)  §  45;    Cent.  Dig.  §§   38-45; 
"Courts,"  Cent.  Dig.  §§  1816-1385. 

58  Whitney  v.  Dick,  202  U.  S.  132,  26  Sup.  Ct.  584,  50  L.  Ed.  963. 
See  "Habeas  Corpus"  Dec.  Dig.  (Key-No.)  §  45;  Cent.  Dig.  §§  38-45; 
"Courts,"  Cent.  Dig.  §§  1816-1385. 

o»  U.  S.  Comp.  St  1901,  p.  593. 


214  DISTRICT  COURT — EXTRAORDINARY   WRITS        (Ch.  10 

forced.  In  Re  Neagle  60  it  was  neither  signed  nor  sworn 
to  by  the  applicant,  but  by  some  one  in  his  behalf;  and 
so,  too,  in  Re  Baez.61 

The  applicant  must  set  out  the  facts  clearly,  and  show 
wherein  a  federal  question  is  involved.  Mere  general  al- 
legations of  such  are  not  sufficient,  and  there  is  an  express 
requirement  that  the  claim  under  which  the  applicant 
is  detained  must  be  set  out,  if  known;  which  means  that 
copies  of  the  proceedings  attacked  must  be  set  out,  or  their 
essential  parts  stated  in  the  application.82 

Rule  to  Show  Cause 

The  coiirt,  instead  of  issuing  the  writ  in  the  first  in- 
stance, may,  if  it  thinks  proper,  first  issue  a  rule  to  show 
cause  why  the  writ  should  not  issue.63 

Will  Not  Issue  if  Petition  Shows  Applicant  Not  Entitled 
Thereto 

Under  section  755  of  the  Revised  Statutes  e*  the  court 
may  issue  the  writ,  unless  it  appears  from  the  petition  it- 
self that  the  party  is  not  entitled  thereto.  Under  this 
clause  of  the  statute  it  has  been  held  that  the  writ  will  not 
issue  when  it  appears  upon  the  face  of  the  petition  that  the 
prisoner  is  not  entitled  to  it,  or  that  it  can  serve  no  benefi- 
cial purpose  to  the  applicant. 

In  Ex  parte  Terry  65  the  application  showed  upon  its 
face  that  the  party  had  been  committed  for  contempt,  and 

«o  135  U.  S.  1,  10  Sup.  Ct.  658,  35  L.  Ed.  55.  See  "Habeas  Corpus," 
Dec.  Dig.  (Key-No.)  §§  53,  57;  Cent.  Dig.  §§  50-54. 

61177  U.  S.  378,  20  Sup.  Ct.  673,  44  L.  Ed.  813.  See,  also,  U.  S. 
v.  Watchorn  (C.  C.)  164  Fed.  152.  See  "Habeas  Corpus,"  Dec.  Dig. 
(Key-No.)  §§  53-57;  Cent.  Dig.  §§  50-54- 

62  Kohl  v.  Lehlback,  160  U.  S.  293,  16  Sup.  Ct.  304,  40  L.  Ed.  432; 
Andersen  v.  Treat,  172  U.  S.  24,  19  Sup.  Ct.  67,  43  L.  Ed.  351 ;  Craem- 
er  v.  Washington,  168  U.  S.  124,  18  Sup.  Ct  1,  42  L.  Ed.  407.  See 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  54;  Cent.  Dig.  §  51. 

es  in  re  Lewis  (C.  C.)  114  Fed.  963.  See  "Habeas  Corpus,"  Dec. 
Dig.  (Key-No.)  §  58. 

e*  U.  S.  Comp.  St.  1901,  p.  593. 

65  128  U.  S.  289,  9  Sup.  Ct.  77,  32  L.  Ed.  405.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §§  87-96. 


§    90)  WRIT   OF   HABEAS   COEPU8  215 

that  the  court  had  authority  to  make  the  committal.  So 
it  was  refused. 

In  Re  Boardman  66  no  federal  question  appeared  upon 
the  petition,  and,  as  it  was  evident  that  the  prisoner  would 
be  remanded  if  the  writ  issued,  the  court  refused  to  issue 
it  in  the  first  instance. 

In  Re  Baez  67  the  applicant  had  been  sentenced  for  il- 
legally voting  in  Puerto  Rico,  but  it  appeared  that  his  sen- 
tence had  been  for  only  thirty  days,  that  most  of  it  had  ex- 
pired when  the  writ  was  asked,  and  that  the  balance  would 
expire  before  the  court,  in  the  nature  of  things,  could  con- 
sider the  writ.  Hence  it  was  refused  as  involving  a  mere 
moot  question. 

The  return  is  taken  to  be  true  until  it  is  disproved,68 
and,  where  the  writ  is  being  used  to  attack  collateral  pro- 
ceedings in  another  court,  the  applicant  cannot  contradict 
the  record  whose  validity  he  is  questioning.69 

On  the  other  hand,  he  can  prove  facts  which  do  not  con- 
tradict the  record,  as  in  Ex  parte  Cuddy,70  where  the  pro- 
cedure was  for  contempt  on  an  attempt  to  bribe  a  juror. 
The  record  did  not  show  where  the  attempt  to  bribe  was 
made,  and  the  court  held  that,  for  the  purpose  of  consid- 
ering the  question,  the  party  could  prove  this,  as  it  did 
not  contradict  the  record.71 


ae  169  U.  S.  39,  18  Sup.  Ct.  291,  42  L.  Ed.  653.  See,  also,  Erickson 
v.  Hodges,  179  Fed.  177,  102  C.  C.  A.  443.  See  "Habeas  Corpus,"  Dec. 
Dig.  (Key-No.)  §§  61,  92;  Cent.  Dig.  §§  55,  87-96. 

67  177  U.  S.  378,  20  Sup.  Ct.  673,  44  L.  Ed.  813.  See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  §  5. 

es  Crowley  v.  Christensen,  137  U.  S.  86,  11  Sup.  Ct  13,  34  L.  Ed. 
620 ;  Stretton  v.  Rudy,  176  Fed.  727,  101  C.  C.  A.  223.  See  "Habeas 
Corpus,"  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §  70. 

e»  In  re  Terry,  128  U.  S.  289,  9  Sup.  Ct  77,  32  L.  Ed,  405.  See 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §  70. 

70  131  TL  S.  280,  9  Sup.  Ct.  703,  33  L.  Ed.  154.    See  "Habeas  Cor- 
pus," Dec.  Dig.  (Key-No.)  §§  92,  94;   Cent.  Dig.  §§  81-96. 

71  Ex  parte  Mayfield,  141  U.  S.  107,  11  Sup.  Ct.  939,  35  L.  Ed.  635. 
See  "Habeas  Corpus"  Dec.  Dig.  (Key-No.)  §§  92,  94;    Cent.  Dig.  §§ 
81-96. 


216  DISTRICT   COURT — EXTRAORDINARY   WRITS        (Ch.  10 

Testimony,  however,  can  be  taken  when  it  does  not  con- 
travene these  well-settled  rules.72 

Where  the  prisoner  is  entitled  to  a  writ,  the  court  will 
not  always  discharge  him  unconditionally,  but  will  fre- 
quently hold  him  until  the  proper  authorities  can  be  noti- 
fied, so  as  to  permit  his  rearrest  in  case  the  error  com- 
plained of  can  be  corrected.73 


NE  EXEAT 

91.  This  writ  may  be  issued  by  the  district  court  or  Su- 
preme Court  in  their  respective  spheres  to  prevent 
the  party  proceeded  against  from  leaving  the 
United  States  in  order  to  defeat  the  ends  of  jus- 
tice. 

Under  section  717  of  the  Revised  Statutes,74  it  is  pro- 
vided: "Writs  of  ne  exeat  may  be  granted  by  any  justice 
of  the  Supreme  Court,  in  cases  where  they  might  be  grant- 
ed by  the  Supreme  Court;  and  by  any  circuit  court  justice 
or  circuit  judge,  in  cases  where  they  might  be  granted 
by  the  court  of  which  he  is  a  judge.  But  no  writ  of  ne 
exeat  shall  be  granted  unless  a  suit  in  equity  is  com- 
menced, and  satisfactory  proof  is  made  to  the  court  or 
judge  granting  the  same  that  the  defendant  designs  quick- 
ly to  depart  from  the  United  States." 

The  abolition  of  the  circuit  court  by  the  Judicial  Code 
substitutes  the  district  court  in  its  stead. 


1 2  In  re  NEAGLE,  135  U.  S.  1,  10  Sup.  Ct.  658,  34  L.  Ed.  55; 
Storti  v.  Massachusetts,  183  U.  S.  138,  22  Sup.  Ct.  72,  46  L.  Ed.  120. 
See  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §§  92-96;  Cent.  Dig.  §§ 
81-96. 

73  In  re  Medley,  134  U.  S.  160,  10  Sup.  Ct.  384,  33  L.  Ed.  835;    In 
re  Bonner,  151  U.  S.  242,  14  Sup.  Ct.  323,  38  L.  Ed.  149.    See  "Ha- 
beas Corpus,"  Dec.  Dig.  (Key-No.)  §§  109-111;   Cent.  Dig.  §§  97-100. 

74  U.  S.  Comp.  St.  1901,  p.  580. 


§    91)  NE    EXEAT  217 

The  bankrupt  act  also  gives  the  district  court  jurisdic- 
tion to  issue  process  of  this  nature  against  a  bankrupt.76 

Under  section  716,  giving  the  Supreme  Court,  circuit 
courts,  and  district  courts  power  to  issue  writs  necessary 
for  the  exercise  of  their  respective  jurisdictions,  the  dis- 
trict court  may  also  issue  it  in  connection  with  a  case  in 
that  court. 

Nor  is  the  right  to  issue  it  limited  to  the  progress  of  the 
case  before  final  decree,  but  it  may  be  issued  after  final  de- 
cree, as  a  means  of  preventing  a  debtor  from  concealing  his 
property  and  absconding.76 

This  writ,  however,  is  not  a  matter  of  right,  and  the 
court,  in  its  discretion,  may  refuse  to  issue  it  if  the  incon- 
venience to  the  defendant  is  great,  and  the  plaintiff  has 
equally  convenient  methods  of  protecting  himself.  For  in- 
stance, where  a  citizen  of  New  York  applied  to  a  United 
States  court  in  Maine  to  issue  it  against  a  Canadian,  who 
was  merely  there  on  a  vacation,  and  who  was  easily  suable 
in  Quebec,  in  such  case  the  judge  refused  to  issue  it.77 

The  usual  condition  of  the  bond  taken  from  the  defend- 
ant seized  under  this  writ  is  that  he  will  be  amenable  to 
the  further  orders  and  processes  of  the  court  issuing  it, 
though  it  would  not  be  improper  to  make  the  bond  con- 
ditioned that  he  should  perform  the  decree  of  the  court.78 

7 sin  re  Berkowitz  (D.  C.)  173  Fed.  1012.  See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  265;  Cent.  Dig.  §  802;  "Ne  Exeat,"  Dec.  Dig.  (Key- 
No.)  §  4;  Cent.  Dig.  §  7. 

76  Shainwald  v.  Lewis  (D.  C.)  46  Fed.  839.    See  "Ne  Exeat,"  Dec. 
Dig.  (Key-No.)  §§  1,  8;    Cent.  Dig.  §§  1-6. 

77  Harrison  v.  Graham  (C.  C.)  110  Fed.  896.    See  "Ne  Exeat,"  Dec. 
Dig.  (Key-No.)  §§  1,  3;   Cent.  Dig.  §§  1-6. 

78Griswold  v.  Hazard,  141  U.  S.  260,  11  Sup.  Ct.  972,  35  L.  Ed. 
678.  See,  also,  In  re  Appel,  163  Fed.  1002,  90  C.  C.  A.  172,  20  L.  R. 
A.  (N.  S.)  76.  See  "Ne  Exeat,"  Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig. 
§  10. 


218        DISTRICT   COURT — ORDINARY   CONTROVERSIES        (Ch.  11 


CHAPTER  XI 

DISTRICT   COURT    (Continued)— ORIGINAL   JURISDICTION 
OVER  ORDINARY  CONTROVERSIES 

92.  The  Ordinary  Civil  Jurisdiction  of  the  District  Courts. 

93.  Same — Suits  of  a  Civil  Nature  at  Common  Law  or  in  Equity — 

Meaning  of  "Suit." 

94.  Same — Same — Suits  at  Law. 

95.  Same — Same — Suits  in  Equity. 

96.  Same— Suits  by  the  United  States  or  Any  Officer  Thereof. 

97.  Same — Controversies  between  Citizens  of  the  Same  State  Claim- 

ing Lands  under  Grants  of  Different  States. 

98.  Same — Jurisdictional  Amount. 

99.  Same — Federal  Questions. 

100.  Same — Controversies,  between  Citizens  of  Different  States — Nat- 

ural Persons. 


THE   ORDINARY   CIVIL  JURISDICTION   OF  THE 
DISTRICT  COURTS 

92.  The  ordinary  original  civil  jurisdiction  of  the  district 
court  extends  to  cases  in  which  the  following 
requisites  concur: 

First.  It  must  be  a  suit  of  a  civil  nature  at  common  law 
or  in  equity. 

Second.  It  must  be  either 

(1)  Brought  by  the  United  States  or  an  officer  there- 

of, or 

(2)  Be  between  citizens  of  the  same  State  claiming 

lands  under  grants  from  different  States,  or 

(3)  Exceed  three  thousand  dollars  and 

(a)  Arise  under  the  Constitution,  laws  or  trea- 

ties of  the  United  States,  or 

(b)  Be  between  citizens  of  different  States,  or 

(c)  Be  between  citizens  of  a  state  and  foreign 

states,  citizens  or  subjects. 


§    92)  ORDINARY    CIVIL   JURISDICTION  219 

The  branches  of  jurisdiction  heretofore  discussed  have 
been  of  a  special  or  exceptional  nature.  Until  the  Judicial 
Code  of  1911,  it  had  been  the  policy  of  Congress  to  confer 
on  the  district  court  cognizance  of  litigation  of  this  sort, 
and  to  make  the  circuit  court  the  forum  for  the  ordinary 
controversies  between  man  and  man  of  which  the  federal 
courts  could  take  jurisdiction.  Therefore  the  previous  dis- 
cussion has  been  of  those  classes  which  went  into  the 
district  court  before  the  Judicial  Code,  either  exclusively 
or  concurrently  with  the  circuit  court.  They  were  carried 
into  the  Judicial  Code  beginning  with  paragraph  2  of  sec- 
tion 24.  Paragraph  1  of  that  section  sets  out  the  general 
jurisdiction  over  controversies  which  heretofore  went  into 
the  circuit  court  and  which  by  the  Judicial  Code  have  been 
transferred  bodily  to  the  district  court.  Though  substan- 
tially constant  in  its  general  scheme,  it  has  been  changed 
greatly  in  detail,  but  it  is  an  evolution  of  the  previous  acts 
from  the  judiciary  act  of  1789  (1  Stat.  73,  c.  20)  to  the  pres- 
ent time.  It  is  as  follows: 

"Sec.  24.  The  district  courts  shall  have  original  jurisdic- 
tion as  follows: 

"First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity,  brought  by  the  United  States,  or  by  any  officer 
thereof  authorized  by  law  to  sue,  or  between  citizens  of  the 
same  state  claiming  lands  under  grants  from  different 
states ;  or,  where  the  matter  in  controversy  exceeds,  ex- 
clusive of  interest  and  costs,  the  sum  or  value  of  three 
thousand  dollars,  and  (a)  arises  under  the  Constitution 
or  laws  of  the  United  States,  or  treaties  made,  or  which 
shall  be  made,  under  their  authority,  or  (b)  is  between  citi- 
zens of  different  states,  or  (c)  is  between  citizens  of  a  state 
and  foreign  states,  citizens,  or  subjects.  No  district  court 
shall  have  cognizance  of  any  suit  (except  upon  foreign 
bills  of  exchange)  to  recover  upon  any  promissory  note  or 
other  chose  in  action  in  favor  of  any  assignee,  or  of  any 
subsequent  holder  if  such  instrument  be  payable  to  bearer 


220        DISTRICT  COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

and  be  not  made  by  any  corporation,  unless  such  suit  might 
have  been  prosecuted  in  such  court  to  recover  upon  said 
note  or  other  chose  in  action  if  no  assignment  had  been 
made :  Provided,  however,  that  the  foregoing  provision  as  to 
the  sum  or  value  of  the  matter  in  controversy  shall  not  be  con- 
strued to  apply  to  any  of  the  cases  mentioned  in  the  suc- 
ceeding paragraphs  of  this  section."  * 

The  jurisdiction  conferred  by  this  section  is  far  short 
of  that  which  Congress  can  validly  grant  to  the  federal 
courts,  being  limited  both  as  to  the  character  of  suit  and 
as  to  the  amount  involved.  An  analysis  of  the  section 
shows  that,  in  order  for  federal  jurisdiction  to  vest,  the 
following  requisites  must  concur:  first,  it  must  be  a  suit 
of  a  civil  nature  at  common  law  or  in  equity ;  second,  it 
must  be  either  (1)  brought  by  the  United  States  or  one'of 
its  officers,  or  (2)  be  between  citizens  of  the  same  state 
claiming  lands  under  grants  from  different  states,  or  (3) 
exceed  three  thousand  dollars  exclusive  of  interest  and 
costs,  and  (a)  arise  under  the  Constitution,  laws  or  treaties 
of  the  United  States,  or  (b)  be  between  citizens  of  different 
States,  or  (c)  be  between  citizens  of  a  state  and  foreign 
states,  citizens  or  subjects. 

SAME— SUITS  OF  A  CIVIL  NATURE  AT  COMMON 
LAW  OR  IN  EQUITY— MEANING  OF  "SUIT" 

93.  It  is  not  every  procedure  which  is  a  suit.  The  word  is 
used  in  the  sense  of  a  proceeding  in  a  court  of 
common  law  or  equity  which  culminates  in  a  judg- 
ment that  conclusively  determines  a  right  or  obli- 
gation of  the  parties,  so  that  the  same  matter  can- 
not be  further  litigated  except  by  writ  of  error  or 
appeal.2 

1  36  Stat.  1091  (U.  S.  Comp.  St.  Supp.  1911,  p.  135). 

2  In  re  Stutsman  Co.  (C.  C.)  88  Fed.  337.     See  "Action,"  Dec.  Dig. 
(Key-No.)  §§   /,  16;    Cent.  Dig.  §§  1-7,  86-93;    "Courts,"  Dec.  Dig. 


§    93)  ORDINARY    CIVIL   JURISDICTION  221 

Matters  of  mere  administration  or  ex  parte  proceedings 
are  not  suits,  in  the  sense  of  this  statute.  For  instance,  the 
federal  courts  have  no  probate  jurisdiction  for  admitting 
or  refusing  the  probate  of  wills,  or  for  administering  an 
estate  by  virtue  thereof.3 

By  this  it  is  meant  that  the  federal  courts  have  no  pro- 
bate jurisdiction  as  such.  If,  however,  they  have  jurisdic- 
tion by  virtue  of  the  citizenship  of  the  parties,  and  in  some 
proceeding  which  is  undoubtedly  a  common-law  or  equity 
proceeding,  the  fact  that  questions  under  a  will  are  in- 
volved does  not  of  itself  defeat  that  jurisdiction.4 

A  proceeding  before  a  tribunal  charged  with  the  special 
power  of  revising  a  tax  assessment  has  also  been  held  not 
to  be  a  suit,  within  the  sense  of  the  federal  statute.  A 
leading  case  on  this  subject  is  Upshur  County  v.  Rich,5 
which  considered  an  appeal  to  a  body  called  a  county  court 
in  West  Virginia.  The  court,  however,  reviewing  the  state 
statutes,  held  that  this  was  not  a  court,  in  the  proper  sense 
of  the  term ;  that  its  duties  were  merely  administrative, 
and  not  judicial ;  and  that  therefore  the  federal  courts  had 
no  jurisdiction  over  such  a  proceeding.  On  the  other  hand, 
in  Re  Stutsman  County 6  District  Judge  Amidon  held 


(Key-No.)  §  281;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  4; 
Vent.  Dig.  §§  11-20. 

s  UPSHUR  COUNTY  v.  RICH,  135  U.  S.  467,  10  Sup.  Ct.  651,  34 
L.  Ed.  196;  O'Callaghan  v.  O'Brien,  199  U.  S.  89,  25  Sup.  Ct.  727, 
50  L.  Ed.  101.  See  "Courts,1'  Dec.  Dig.  (Key-No.)  §  281;  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  11-20. 

*  Waterman  v.  Canal-Louisiana  Bank  &  Trust  Co.,  215  U.  S.  33, 
30  Sup.  Ct.  10,  54  L.  Ed.  80;  McClellan  v.  Carland,  217  U.  S.  268, 
30  Sup.  Ct.  501,  54  L.  Ed.  762;  American  Baptist  Home  Mission 
Soc.  v.  Stewart  (C.  C.)  192  Fed.  976.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §§  472,  475. 

» 135  U.  S.  467,  It)  Sup.  Ct.  651,  34  L.  Ed.  196.  See,  also,  PACIF- 
IC STEAM  WHALING  CO.  v.  U.  S.,  187  U.  S.  447,  23  Sup.  Ct.  154, 
47  L.  Ed.  253.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  281;  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  11-20. 

«(C.  C.)  88  Fed.  337.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  281; 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  11-20. 


222        DISTRICT  COURT — ORDINARY   CONTROVERSIES        (Ch.  11 

that  as  the  state  statute  in  that  case  made  the  decision 
of  the  court  conclusive  and  binding,  and  settled  the  obliga- 
tion of  the  tax  bill  without  any  remedy  except  by  appeal, 
it  was  a  suit,  in  the  sense  of  the  statute. 

Under  the  same  principle,  a  proceeding  for  condemnation 
of  lands  may  or  may  not  be  a  suit,  according  to  its  nature. 
In  so  far  as  the  proceeding  is  merely  before  a  board  of  in- 
quest, it  is  not  a  suit ;  but  if  the  procedure  is  in  a  court,  and 
unites  the  other  requisites  of  jurisdiction,  it  may  be  one  of 
which  the  federal  court  could  take  jurisdiction.7 

A  mandamus  proceeding,  on  the  other  hand,  is  not  a  suit, 
in  this  sense,  because  mandamus  in  the  federal  courts  is 
not  an  original  writ,  but  rather  in  the  nature  of  a  writ 
of  execution.8 

On  the  other  hand,  a  statutory  civil  action  under  a  state 
law  against  a  corporation  for  the  forfeiture  of  its  charter, 
which  is  the  practical  equivalent  of  a  quo  warranto  pro- 
ceeding, is  such  a  suit.9 

So,  too,  a  writ  of  prohibition  would  come  within  this 
term.10 

7  Mississippi  &  Rum  River  Boom  Co.  v.  Patterson,  98  U.  S.  403, 
25  L.  Ed.  206;  In  re  Delafleld  (C.  C.)  109  Fed.  577;  Madisonville 
Traction  Co.  v.  St.  Bernard  Min.  Co.,  196  U.  S.  239,  25  Sup.  Ct.  251, 
49  L.  Ed.  462;  Drainage  Dist.  No.  19,  Caldwell  County,  v.  Chicago, 
M.  &  St.  P.  R.  Co.  (D.  C.)  198  Fed.  253  (a  drainage  case).  It  has 
already  appeared  that  express  jurisdiction  over  federal  condemna- 
tions is  vested  in  the  district  court  (ante,  p.  -198).  The  above  cases 
were  state  condemnation  proceedings,  in  which  the  question  of  the 
right  to  remove  was  involved.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
281;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  4,  9;  Cent.  Dig. 
§§  11-20. 

s  Davenport  v.  Dodge  County,  105  U.  S.  237,  26  L.  Ed.  1018 ;  Ro- 
senbaum  v.  Bauer,  120  U.  S.  450,  7  Sup.  Ct  633,  30  L.  Ed.  743.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  281;  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §  4;  Cent.  Dig.  §§  11-20. 

eAmes  v.  Kansas,  111  U.  S.  449,  4  Sup.  Ct.  437,  28  L.  Ed.  482. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  281;  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  11-20. 

10  Weston  v.  Charleston,  2  Pet.  449,  7  L.  Ed.  481.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  281;  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  4;  Cent.  Dig.  §§  11-20. 


§§   94-95)  ORDINARY    CIVIL   JURISDICTION  223 

A  habeas  corpus  proceeding  would  also  be  included  with- 
in the  term.11 


SAME— SAME— SUITS  AT  LAW 

94.  By  a  suit  at  law  is  not  meant  simply  a  suit  authorized 
by  the  proceedings  of  the  common  law  as  distin- 
guished from  statutory  proceedings,  but  it  means  a 
suit  administering  a  legal  right  or  title  as  distin- 
guished from  proceedings  in  equity  or  in  admir- 
alty.12 


SAME— SAME— SUITS  IN  EQUITY 

95.  A  suit  in  equity  means  a  suit  within  the  jurisdiction  of 
an  equitable  court,  as  that  jurisdiction  existed  at 
the  time  when  the  Constitution  went  into  effect. 
This  was  practically  the  jurisdiction  of  the  old 
high  court  of  chancery  in  England,  and  while  the 
principle  is  well  established  in  the  federal  courts 
that  equity  has  no  jurisdiction  if  there  is  an  ade- 
quate remedy  at  law,  it  is  equally  well  established 
that  state  legislation  can,  in  a  general  sense,  nei- 
ther enlarge  nor  restrict  the  jurisdiction  of  the  fed- 
eral courts  in  equity;  and  hence  the  fact  that 
there  may  be  now  an  adequate  remedy  at  law  by 
virtue  of  a  state  statute  does  not  defeat  the  juris- 

11  Holmes  v.  Jennison,  14  Pet.  540,  614,  10  L.  Ed.  579,  618.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  281;  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §  4;   Cent.  Dig.  §§  11-20. 

12  Fenn  v.  Holme,  21  How.  481,  16  L.  Ed.  198;    Kohl  v.  U.  S.,  91 
TJ.  S.  367,  23  L.  Ed.  449;    Ellis  v.  Davis,  109  U.  S.  485,  3  Sup.  Ct. 
327,  27  L.  Ed.  1006.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  281;    "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  4;   Cent.  Dig.  §§  11-20. 


224        DISTRICT  COURT — ORDINARY   CONTROVERSIES        (Ch.  11 

diction  of  the  federal  equity  court  if  the  case  is 
of  a  character  in  which  it  would  have  had  jurisdic- 
tion in  1789.13 

This  principle  that  a  state  cannot  enlarge  the  jurisdiction 
of  the  federal  equity  courts  is  a  very  important  one.  It  can 
hardly  be  considered  to  go  so  far  as  to  say  that  no  addi- 
tional state  remedy  in  equity  can  be  adopted  by  the  federal 
courts,  but  it  is  clear  that  such  additional  remedies  cannot 
be  adopted  if  they  would  violate  other  provisions  of  the 
federal  Constitution — notably,  the  provision  that  the  right 
of  jury  trial  shall  be  preserved.  An  analysis  of  the  cases 
to  be  quoted  shows  that  this  is  the  point  on  which  prac- 
tically all  of  them  turn.  A  new  remedy  in  equity  given 
by  the  state  court  as  to  cases  in  which  the  party  would 
not  have  been  entitled  to  a  jury  trial  at  common  law  could 
be  adopted  by  the  federal  courts.-14 

As  an  illustration  of  the  principle  that  a  state  statute 
cannot  substitute  an  equitable  procedure  for  one  which  at 
common  law  would  have  been  before  a  jury,  Whitehead 
v.  Shattuck  15  was  a  case  in  which  the  state  statute  gave 
a  party  who  was  out  of  possession  a  statutory  right  to  pro- 
ceed in  equity  to  settle  the  title  to  real  estate.  The  Su- 
preme Court  held  that  the  federal  court  would  have  no 
jurisdiction  over  it.  So,  too,  where  a  state  statute  gave  a 
simple-contract  creditor  the  right  to  file  a  bill  in  equity  to 

is  McCONIHAT  v.  WRIGHT,  121  U.  S.  201,  7  Sup.  Ct  940,  30  L. 
Ed.  932 ;  Arrowsmith  v.  Gleason,  129  U.  S.  86,  9  Sup.  Ct.  237,  32  L. 
Ed.  630;  Green  v.  Turner  (C.  C.)  98  Fed.  756;  Waterman  y.  Canal- 
Louisiana  Bank  &  Trust  Co.,  215  U.  S.  33,  30  Sup.  Ct  10.  54  L.  Ed. 
80;  ante,  p.  10;  post,  p.  419.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§ 
262,  835;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§ 
11-20. 

i*  National  Surety  Co.  v.  State  Bank,  120  Fed.  593,  56  C.  C.  A. 
657,  61  L.  R.  A.  394.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  262;  Cent. 
Dig.  §§  797,  798. 

is  138  U.  S.  146,  11  Sup.  Ct.  276,  34  L.  Ed.  873.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  335;  Cent.  Dig.  §§  902-907%. 


§    96)  ORDINARY   CIVIL   JURISDICTION  225 

set  aside  a  conveyance  alleged  to  be  fraudulent,  though  it 
gave  him  a  lien  from  the  date  of  filing  his  bill,  it  was  held 
that  the  federal  courts  had  no  jurisdiction,  and  that  it  was 
necessary  to  proceed  to  judgment  on  the  claim  at  common 
law  before  such  a  creditor  could  file  a  bill,  or  at  least  to 
have  some  lien  or  charge  which  was  enforceable  under  the 
general  principles  of  equity  jurisprudence.16 

As  state  legislation  modifying  or  rearranging  the  original 
jurisdiction  of  common  law  or  equity  as  between  its  own 
courts  cannot  operate  to  enlarge  the  equity  jurisdiction  of 
the  federal  courts  as  conferred  by  the  Constitution,  so  nei- 
ther can  such  legislation  curtail  it.17 

SAME— SUITS  BY  THE  UNITED  STATES  OR  ANY 
OFFICER  THEREOF 

96.  The  district  court  has  cognizance  of  all  suits  of  a  civil 
nature,  at  common  law  or  in  equity  brought  by 
the  United  States,  or  by  any  officer  thereof  author- 
ized by  law  to  sue. 

This  is  the  first  class  of  suits  named  in  paragraph  1,  § 
24,  of  the  Judicial  Code.  The  jurisdiction  vests  regardless 
of  the  amount  involved,  the  committee  of  revision  having 
adopted  in  this  respect  the  construction  placed  upon  the 
former  acts  by  the  Supreme  Court.18 

An  action  of  debt  for  penalties  in  the  name  of  the  United 
States  is  sustainable  under  this  paragraph,  as  well  as  under 

i«  SCOTT  v.  NEELY,  140  U.  S.  106,  11  Sup.  Ct  712,  35  L.  Ed.  358; 
Gates  v.  Allen,  149  U.  S.  451,  13  Sup.  Ct.  977,  37  L.  Ed.  804 ;  Rol- 
lins v.  Brierfield  Coal  &  Iron  Co.,  150  U.  S.  371,  14  Sup.  Ct  127,  37 
L.  Ed.  1113.  See  "Courts,1'  Dec.  Dig.  (Key-No.)  §§  259,  335;  Cent. 
Dig.  §§  902-907%. 

i?  Western  Union  Tel.  Co.  v.  Trapp,  186  Fed.  114,  108  C.  C.  A. 
226.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  259,  335;  Cent.  Dig.  §§ 
795,  796,  902-907%. 

is  U.  S.  v.  SAY  WARD,  160  tJ.  S.  493,  16  Sup.  Ct.  371,  40  L.  Ed. 
508.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  296,  326;  Cent.  Dig.  §  838. 

HUGHES  FED.PB.(2o  ED.) — 15 


226        DISTRICT   COURT — OEDINABY   CONTROVERSIES        (Ch.  11 

the  ninth.19  So,  also,  an  action  on  a  postmaster's  bond.20 
So,  also,  an  action  of  trover  by  a  United  States  marshal  for 
money  held  by  him  in  that  capacity.21  Suits  by  receivers 
of  national  banks,  to  realize  the  assets  of  the  bank  and  for 
other  purposes,  are  also  sustainable  under  this  section.22 
Also  suits  on  contractors'  bonds  for  the  benefit  of  material- 


23 


men. 


SAME— CONTROVERSIES     BETWEEN     CITIZENS 

OF    THE    SAME    STATE    CLAIMING    LANDS 

UNDER  GRANTS  OF  DIFFERENT  STATES 

97.  The  district  court  has  jurisdiction  of  cases  involving 
controversies  between  citizens  of  the  same  state 
claiming  lands  under  grants  of  different  states. 

The  reason  for  conferring  most  classes  of  jurisdiction 
upon  the  federal  courts  is  to  protect  those  whose  rights 
depend  upon  federal  statutes,  or  who  are  nonresidents, 
from  local  influences  and  prejudices.  Hence  it  is  as  im- 
portant to  confer  this  jurisdiction  where  the  source  of  title 
might  create  prejudice,  as  where  friends  of  the  local  tri- 
bunal or  juries  are  opposed  to  strangers. 

is  Jacob  v.  TJ.  S.,  Fed.  Gas.  No.  7,157;  Hepner  v.  TJ.  S.,  213  U.  S. 
103,  29  Sup.  Ct  474,  53  L.  Ed.  720,  27  L.  R.  A.  (N.  S.)  739,  16  Ann. 
Gas.  960.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  296;  Cent.  Dig.  §  838. 

20  Postmaster  General  v.  Early,  12  Wheat.  136,  6  L.  Ed.  577.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  296;   Cent.  Dig.  §  838. 

21  Henry  v.  Sowles  (D.  C.)  28  Fed.  481.    See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  236;   Cent.  Dig.  §  838. 

22  Frelinghuysen  v.  Baldwin  (D.  C.)  12  Fed.  395;    Lake  Nat.  Bank 
v.  Wolfeborough  Sav.  Bank,  78  Fed.  517,  24  C.  C.  A.  195 ;     Schofield 
v.  Palmer  (C.  C.)  134  Fed.  753;    Auten  v.  United  States  Nat.  Bank, 
174  U.  S.  125,  19  Sup.  Ct  628,  43  L.  Ed.  920.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  296;   Cent.  Dig.  §  838.  . 

23  United  States  Fidelity  &  Guaranty  Co.  v.  U.  S.,  204  U.  S.  349, 
27  Sup.  Ct.  381,  51  L.  Ed.  516.    See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
296;   Cent.  Dig.  §  838. 


§    98)  ORDINARY    CIVIL   JURISDICTION  227 

At  the  time  of  the  adoption  of  the  Constitution,  conflict- 
ing land  grants  among  the  several  states  were  quite  com- 
mon. The  relative  boundaries  of  the  states  in  relation  to 
each  other  were  not  well  settled,  and  when  new  states  were 
formed  there  were  often  difficulties  as  to  whether  the  grant 
from  the  old  state  or  the  grant  from  the  new  state  was  a 
valid  one.  It  was  soon  decided  that  the  federal  courts  had 
jurisdiction  in  cases  of  conflicting  grants  between  an  old 
and  a  new  state,  although  the  grant  of  the  old  state  was 
made  before  the  new  state  was  formed.  This  was  decided 
in  the  case  of  conflicting  grants  from  New  Hampshire  and 
Vermont,  where  the  New  Hampshire  grant  was  made  at  a 
time  when  Vermont  was  still  a  part  of  New  Hampshire.24 
This  source  of  litigation,  however,  has  long  since  lost  its 
importance. 

SAME— JURISDICTIONAL  AMOUNT 

98.  "The  matter  in  controversy  must  exceed,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  $3,000." 
The  "matter  in  controversy,"  in  the  sense  in  which 
it  is  used  as  defining  the  pecuniary  jurisdiction  of 
the  federal  courts,  means  the  claim  presented  on 
the  record  to  the  consideration  of  the  court, 
though,  as  a  matter  of  fact,  the  claim  is  not  sus- 
tained by  the  proof,  or  though  it  is  only  in  part 
well  founded.  It  is  the  pecuniary  consequences  to 
the  party  which  are  dependent  on  the  litigation.25 

This  means  the  amount  or  value  directly  at  issue  be- 
tween the  parties  in  the  special  suit.  The  collateral  effect 

2*  Pawlet  v.  Clark,  9  Cranch,  292,  3  L.  Ed.  735.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  320;  Cent.  Dig.  §  846. 

25  Kanouse  v.  Martin,  15  How.  198,  14  L.  Ed.  660;  Schunk  v. 
Moline,  Milburn  &  Stoddard  Co.,  147  U.  S.  500,  13  Sup.  Ct.  416,  37  L. 
Ed.  255;  WHELESS  v.  ST.  LOUIS,  180  U.  S.  379,  21  Sup.  Ct.  402, 
45  L.  Ed.  583.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;  Cent.  Dig. 
§§  890-896. 


228        DISTRICT  COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

of  that  suit  cannot  be  considered.  For  instance,  where  suit 
is  brought  upon  coupons  detached  from  bonds  whose 
amounts  were  less  than  $2,000,  and  the  issue  raised  in- 
volved not  merely  the  validity  of  the  coupons,  but  the 
validity  of  the  bonds  themselves,  this  fact  did  not  give 
jurisdiction.26 

The  former  statutes  as  to  the  jurisdiction  of  the  federal 
courts  prescribed  a  lesser  amount  than  the  present  limit 
of  $3,000,  and  did  not  exclude  interest  from  the  computa- 
tion. Hence  decisions  passing  upon  the  amount  then  re- 
quired are  in  point  as  to  the  general  principle,  though  this 
difference  between  them  must  be  borne  in  mind. 

Prior  to  the  establishment  of  the  circuit  courts  of  ap- 
peals, the  limit  to  the  jurisdiction  of  the  United  States  Su- 
preme Court  was  for  a  long  time  $2,000,  and  then  $5,000. 
The  statutes  defining  this  limit  used  the  same  language  as 
the  statutes  regulating  the  jurisdiction  of  the  lower  court 
as  to  amount,  except  that  interest  was  not  excluded  from 
the  calculation.  Hence  decisions  on  the  statutes  limiting 
the  jurisdiction  of  the  Supreme  Court  are  also  in  point,  and 
many  of  those  referred  to  under  this  title  relate  to  the  ju- 
risdiction of  the  Supreme  Court  under  the  former  law. 

The  claim  asserted  by  the  plaintiff,  in  order  to  give  juris- 
diction, must  be  actually  asserted  in  good  faith,  and  not  col- 
orable merely.  If,  for  instance,  coupons  or  other  evidences 
of  indebtedness  are  transferred  to  a  prospective  plaintiff 
without  consideration,  and  merely  for  the  purpose  of  collec- 
tion, the  court  will  not  acquire  jurisdiction.  Not  only  this, 
but  under  another  section  of  the  statute  it  is  the  duty  of 
the  court,  of  its  own  motion,  even  without  a  plea,  to  dismiss 
the  case  for  want  of  jurisdiction  on  discovering  that  the 
suit  does  not  really  and  substantially  involve  a  dispute  or 
controversy  properly  within  the  jurisdiction  of  the  court, 

26  Bruce  v.  Manchester  &  K.  R.  Co.,  117  U.  S.  514,  6  Sup.  Ct.  849, 
29  L.  Ed.  990.  See  "Courts,"  Dec.  Dig.  (Key-Xo.)  §  328;  Cent.  Dig. 
§§  890-896. 


§    98)  ORDINARY    CIVIL   JURISDICTION  229 

or  that  the  parties  to  the  suit  have  been  improperly  or  col- 
lusively  made  or  joined  either  as  plaintiffs  or  defendants  for 
the  purpose  of  creating  a  case  cognizable  by  the  federal 
courts.27 

In  considering  whether  the  case  involves  a  sufficient 
amount  to  give  the  court  jurisdiction,  reference  will  be 
made,  not  to  the  ad  damnum  clause  alone,  but  to  the  whole 
declaration.  For  instance,  where  replevin  was  brought  for 
liquors  alleged  to  be  worth  $1,000,  and  the  item  of  special 
damage  to  complainant's  business  was  added,  but  it  was 
apparent  from  the  face  of  the  declaration  itself  that  the 
item  was  not  recoverable,  the  court  refused  to  sustain  ju- 
risdiction, though  the  ad  damnum  clause  was  large  enough, 
considered  alone,  to  give  it.28 

So,  too,  where  the  ad  damnum  clause  was  high  enough, 
but  one  item  of  damage  was  claimed,  which,  on  the  face  of 
the  declaration,  appeared  to  be  illegal  or  not  recoverable  or 
provable  in  evidence,  the  court  held  that  the  jurisdiction  did 
not  attach.29 

On  the  other  hand,  in  suits  where  there  is  no  fixed  meas- 
ure of  damages  prescribed  by  law,  as  in  suits  for  malicious 
torts  or  trespass,  the  court  is  practically  compelled  to  go  by 
the  ad  damnum  clause,  for  the  question  of  the  amount  of 
damages  in  such  case  is  for  the  jury;  and  the  court  cannot 
say,  as  matter  of  law,  that  the  ad  damnum  clause  is  laid 
too  high,  though  it  might  think  that  a  recovery  would  not 
exceed  the  statutory  requirement.30 

27  Waite  v.  Santa  Cruz,  184  U.  S.  302,  22  Sup.  Ct.  327,  46  L.  Ed. 
552 ;   Woodside  v.  Beckham,  216  U.  S.  117,  30  Sup.  Ct  367,  54  L.  Ed. 
408.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;    Cent.  Dig.  §§  890- 
896. 

28  Vance  v.  Vandercook  Co.,  170  U.  S.  468,  18  Sup.  Ct  645,  42  L. 
Ed.  1111 ;    Smithers  v.  Smith,  204  U.  S.  632,  27  Sup.  Ct.  297,  51  L. 
Ed.  656.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  329;   Cent.  Dig.  §  897. 

2»  North  American  Transportation  &  Trading  Co.  v.  Morrison,  178 
U.  S.  262,  20  Sup.  Ct  869,  44  L.  Ed.  1061.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  329;  Cent.  Dig.  §  897. 

so  Scott  v.  Donald,  165  U.  S.  58,  17  Sup.  Ct.  265,  41  L.  Ed.  632; 


230        DISTRICT  COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

As  the  measure  is  the  plaintiff's  claim,  and  not  the 
amount  actually  due  him,  the  final  result  is  no  test;*  and 
therefore  the  fact  that  the  defendant  admits  the  claim  or 
that  recovery  is  for  less  than  the  jurisdictional  amount 
is  immaterial.  If  this  were  not  so,  every  verdict  for  a  de- 
fendant in  the  federal  court  would  conclusively  establish 
the  lack  of  jurisdiction  of  the  court.31 

Where  the  defendant  sets  up  a  counterclaim  and  asks  for 
a  cross-recovery,  so  that  the  question  at  issue  is  not  simply 
the  amount  claimed  by  the  plaintiff,  but  also  the  amount 
claimed  by  the  defendant,  the  aggregate  of  the  two  amounts 
is  the  matter  in  dispute.32 

So,  too,  where  a  counterclaim  is  set  up  as  a  defense  mere- 
ly in  reduction  of  the  plaintiff's  claim,  it  does  not  defeat 
the  jurisdiction,  if  the  plaintiff's  claim  before  any  pleading 
was  put  in  was  sufficient  in  amount.33 

Where  the  plaintiff  sues  for  an  amount,  part  whereof  is 
barred  by  the  statute  of  limitations,  and  this  is  apparent 
upon  the  petition,  the  court  still  has  jurisdiction,  for  the 
statute  of  limitations  is  a  personal  plea,  and  the  court  can- 
not know  judicially  that  the  defendant  will  interpose  it.84 

Wiley  v.  Sinkler,  179  U.  S.  58,  21  Sup.  Ct.  17,  45  L.  Ed.  84.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §'329;  Cent.  Dig.  §  897. 

si  Scott  v.  Donald,  165  U.  S.  58,  17  Sup.  Ct.  265,  41  L.  Ed.  632; 
O.  J.  Lewis  Mercantile  Co.  v.  Klepner,  176  Fed.  343,  100  C.  C.  A. 
285 ;  In  re  Reisenberg,  208  U.  S.  90,  28  Sup.  Ct  219,  52  L.  Ed.  403. 
This  case  discusses  the  meaning  of  the  word  "controversy"  and  de- 
cides that  it  does  not  necessarily  mean  a  contest.  It  was  probably 
due  to  this  decision  that  the  revision  committee  substituted  the  words 
"matter  in  controversy"  in  the  Judicial  Code  for  "matter  in  dispute" 
in  the  previous  statute.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328; 
Cent.  Dig.  §§  890-896. 

32  Block  v.  Darling,  140  U.  S.  234,  11  Sup.  Ct.  832,  35  L.  Ed.  476. 
A  defendant  who  sets  up  a  counterclaim  becomes  an  actor  and  can- 
not deny  the  jurisdiction.     Merchants'  Heat  &  Light  Co.  v.  James 
B.  Clow  &  Sons,  204  U.  S.  286,  27  Sup.  Ct.  285,  51  L.  Ed.  488.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  328;  Cent.  Dig.  §§  890-896. 

33  Pickham  v.   Wheeler-Bliss  Mfg.  Co.,  77  Fed.  663,  23  C.  C.  A. 
391 ;   Id.,  168  U.  S.  708,  18  Sup.  Ct.  945,  42  L.  Ed.  1211.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  328;    Cent.  Dig.  §§  890-896. 

3*  Board  of  Com'rs  of  Kearney  Co.  v.  Vandriss,  115  Fed.  866,  53 


§   98)  ORDINARY   CIVIL  JURISDICTION  231 

The  present  act  excludes  interest  from  the  computation 
in  considering  the  jurisdiction  of  the  district  court.  This, 
however,  means  interest  as  such.  Where  suit  is  brought 
for  a  cause  of  action  into  which  a  calculation  of  interest 
enters  merely  as  an  item  of  damage,  this  does  not  defeat 
the  jurisdiction.  For  instance,  in  a  suit  for  damages  for  a 
breach  of  warranty,  where  under  the  state  statute  the  meas- 
ure of  damages  was  the  cost  of  the  property,  with  interest, 
the  court  had  jurisdiction,  though  the  cost,  independent  of 
interest,  would  not  have  given  it.35 

So,  too,  suits  on  matured  coupons  can  take  the  coupons 
into  account  as  well  as  the  bonds,  for  detached  and  matured 
coupons  are  separate  demands  bearing  interest  themselves, 
and  are  not  mere  incidents  of  the  present  debt.86 

In  suits  for  different  penalties  arising  out  of  alleged  vio- 
lations of  a  statute,  the  amount  in  controversy  is  the  ag- 
gregate of  the  different  penalties  claimed;  and  the  court 
may  consolidate  different  actions  for  such  penalties.37 

In  order  for  the  federal  district  court  to  have  jurisdiction 
under  this  clause,  the  subject-matter  in  dispute  must  be 
capable  of  pecuniary  estimation ;  hence,  although  a  pro- 
ceeding by  habeas  corpus  is  a  suit  at  law  or  equity,  as  above 
explained,  the  district  court  would  not  have  jurisdiction 
of  it  by  virtue  of  this  statute,  for  the  reason  that  no  mone- 


C.  C.  A.  192;  I'd.,  187  U.  S.  642,  23  Sup.  Ct  843,  47  L.  Ed.  346; 
Schunk  v.  Moline,  Milburn  &  Stoddard  Co.,  147  U.  S.  500,  13  Sup.  Ct. 
416,  37  L.  Ed.  255.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;  Cent. 
Dig.  §§  890-896. 

SB  Brown  v.  Webster,  156  U.  S.  328,  15  Sup.  Ct  377,  39  L.  Ed.  440; 
Continental  Casualty  Co.  v.  Spradlin,  170  Fed.  322,  95  C.  C.  A.  112. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;  Cent.  Dig.  §§  890-896. 

36  EDWARDS  v.  BATES  CO.,  163  U.  S.  269,  16  Sup.  Ct  967,  41 
L.  Ed.  155.    See  "Courts,"  Dec.  Dig.  (Key-No.)  f  328;   Cent.  Dig.  §§ 
890-896. 

37  Baltimore  &  O.  S.  R.  Co.  v.  U.  S.,  220  U.  S.  94,  31  Sup.  Ct.  368, 
55  L.  Ed.  384.    See  "Courts,"  Dec.  Dig.  (Key-No.)  S  828;   Cent.  Dig. 
§§  890-896. 


232        DISTRICT  COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

tary  amount  is  involved  in  it.  The  custody  of  a  child,  for 
instance,  "rises  superior  to  money  considerations."  38 

This  merely  means  that  a  federal  district  court  has  no 
jurisdiction  of  such  a  procedure  by  virtue  of  this  special 
statute.  It  is  given  jurisdiction  of  habeas  corpus  proceed- 
ings by  virtue  of  other  statutes  which  have  been  already 
discussed. 

In  considering  the  matter  in  dispute,  the  damages  suf- 
fered are  not  always  the  test.  For  instance,  in  a  suit  to  have 
a  bridge  removed,  as  a  nuisance,  the  matter  in  dispute  is 
not  merely  the  damage  caused  to  the  plaintiff,  but  the  value 
of  the  structure  to  be  removed.39 

So,  in  a  procedure  by  injunction,  the  test  of  jurisdiction  is 
the  value  of  the  right  to  be  protected  or  the  injury  to  be 
prevented.40 

In  a  proceeding  by  a  creditor  to  set  aside  an  alleged 
fraudulent  transfer  of  property,  the  jurisdiction  is  deter- 
mined by  the  amount  for  which  the  creditor  sues,  not  by 
the  value  of  the  property,  for  the  defendant,  by  paying  that 
amount,  would  be  discharged  from  all  obligation.41 

So,  in  a  suit  to  restrain  an  alleged  illegal  issue  of  bonds 
on  the  ground  that  the  plaintiff's  taxes  will  be  materially 
increased,  the  jurisdiction  is  determined  by  the  amount  of 


a  s  Barry  v.  Mercein,  5  How.  103,  12  L.  Ed.  70;  Kurtz  v.  Moffitt, 
115  U.  S.  487,  6  Sup.  Ct.  148,  29  L.  Ed.  458.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  326;  Cent.  Dig.  §  888. 

so  Mississippi  &  M.  Ry.  Co.  v.  Ward,  2  Black,  485,  17  L.  Ed.  311; 
Rainey  v.  Herbert,  55  Fed.  443,  5  C.  C.  A.  183 ;  American  Smelting  & 
Refining  Co.  v.  Godfrey,  158  Fed.  225,  89  C.  C.  A.  139,  14  Ann.  Cas.  8. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  828;  Cent.  Dig.  §§  890-896. 

40  Nashville,  C.  &  St.  L.  Ry.  Co.  v.  McConnell  (C.  C.)  82  Fed.  65 ; 
Southern  Pac.  Co.  v.  Bartine  (C.  C.)  170  Fed.  725 ;   Larabee  v.  Dolley 
(C.  C.)  175  Fed.  365.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;   Cent. 
Dig.  §§  890-896. 

41  Werner  v.  Murphy  (C.  C.)  60  Fed.  769;    Alkire  Grocery  Co.  v. 
Richesin  (C.  C.)  91  Fed.  79.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328; 
Cent.  Dig.  §§  890-896. 


§    98)  ORDINARY    CIVIL   JURISDICTION  233 

the  taxes  the  plaintiff  would  have  to  pay,  not  by  the  value 
of  the  total  bond  issue.42 

Plurality  of  Plaintiffs  or  Defendants 

Where  there  is  more  than  one  plaintiff,  if  the  interests 
of  the  plaintiffs  are  joint,  and  not  several,  the  entire  amount 
will  be  taken  into  consideration  in  determining  the  juris- 
diction; but  if  their  interests  are  several,  and  they  have 
merely  joined  for  convenience  in  bringing  the  suit,  then  the 
amounts  due  to  the  different  plaintiffs  cannot  be  joined  for 
the  purpose  of  conferring  jurisdiction. 

This  is  the  general  rule,  though  sometimes  it  may  be  dif- 
ficult to  draw  the  exact  line.43  For  instance,  in  New  Or- 
leans Pac.  Ry.  Co.  v.  Parker,44  a  bondholder  brought  suit 
on  behalf  of  all  the  bondholders  under  a  mortgage,  and 
actually  represented  more  than  two  hundred  bonds,  and 
the  mortgage  permitted  suit  by  any  bondholder.  The 
court  held  in  such  case  that  all  the  bonds  could  be  con- 
sidered for  the  purpose  of  conferring  jurisdiction,  as  all  the 
bonds  claimed  under  the  common  source  of  title;  that  is, 
the  mortgage. 

On  the  other  hand,  in  Wheless  v.  St.  Louis  45  several  par- 
ties owning  separate  lots  brought  a  suit  attacking  an  as- 
sessment against  them  for  improving  a  street.  The  court 

42  Colvln  v.  Jacksonville,  158  U.  S.  456,  15  Sup.  Ct.  866,  39  L.  Ed. 
1053 ;  Linehan  Ry.  Transfer  Co.  v.  Pendergrass,  70  Fed.  1,  16  C.  C. 
A.  585.  But  a  claim  of  contract  exemption  from  taxation  is  not  lim- 
ited in  value  by  the  amount  of  the  particular  tax  assessed  at  the 
time.  Berryman  v.  Board  of  Trustees  of  Whitman  College,  222  U. 
S.-  334,  32  Sup.  Ct.  147,  56  L.  Ed.  225.  See  "Courts,"  Dec.  Dig.  (Key- 
ATo.)  §  328;  Cent.  Dig.  §§  890-896. 

o  Rainey  v.  Herbert,  55  Fed.  443,  5  C.  C.  A.  183;  Green  Co.  v. 
Thomas,  211  U.  S.  598,  29  Sup.  Ct.  168,  53  L.  Ed.  343 ;  McDaniel  v. 
Traylor,  212  U.  S.  428,  29  Sup.  Ct.  343,  53  L.  Ed.  584 ;  Troy  Bank  v. 
G.  A.  Whitehead  &  Co.,  222  U.  S.  39,  32  Sup.  Ct.  9,  56  L.  Ed.  81. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;  Cent.  Dig.  §§  890-896. 

"  143  U.  S.  42,  12  Sup.  Ct.  364,  36  L.  Ed.  66.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  328;  Cent.  Dig.  §§  890-896. 

«  180  U.  S.  379,  21  Sup.  Ct.  402,  45  L.  Ed.  583.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  328;  Cent.  Dig.  §§  890-896. 


234        DISTRICT  COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

held  in  such  case  that  their  interests  were  several,  and 
could  not  be  joined  for  the  purpose  of  jurisdiction. 

This  same  principle  applies  as  to  joining  the  defendants. 
Where  the  claims  against  the  separate  defendants  are  sev- 
eral, they  cannot  be  joined  for  the  purpose  of  conferring 
jurisdiction.  For  instance,  suits  against  different  county 
officers,  combining  them  as  defendants,  to  enjoin  the  col- 
lection of  a  tax  separately  assessed  in  their  different  coun- 
ties, were  several,  and  the  claims  against  these  different  de- 
fendants could  not  be  joined  for  the  purpose  of  conferring 
jurisdiction.46 

This  principle,  however,  does  not  prevent  parties  from  fil- 
ing petitions  for  amounts  under  the  jurisdictional  amount 
where  a  suit  involving  the  proper  amount  has  already  been 
brought,  and  the  court  has  thereby  acquired  jurisdiction. 
If,  in  administering  a  fund,  the  court  has  acquired  jurisdic- 
tion at  the  suit  of  one  who  had  a  sufficient  amount  to  give 
it,  petitions  filed  by  others  to  share  in  the  result  of  the  suit 
are  merely  incidental,  and  can  be  considered  by  the  court, 
though  they  could  not  originally  have  combined  for  the 
purpose  of  giving  jurisdiction.47 

The  fact  that  the  requisite  amount  is  involved  must  ap- 
pear from  the  allegations  of  fact  in  the  declaration.  A 
mere  general  allegation  that  the  sum  of  $3,000  is  involved 
amounts  to  nothing  more  than  a  conclusion  of  law,  and  is 
not  sufficient,  unless  the  other  parts  of  the  declaration  bear 
it  out.48 

46  Walter  v.  Northeastern  Ry.  Co.,  147  U.  S.  370,  13  Sup.  Ct.  348, 
37  L.  Ed.  206 ;    FISHBACK  v.  WESTERN  UNION  TEL.  CO.,  161  U. 
S.  96,  16  Sup.  Ct.  506,  40  L.  Ed.  630 ;    Citizens'  Bank  v.  Cannon,  164 
U.  S.  319,  17  Sup.  Ct.  89,  41  L.  Ed.  451.     See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  328;   Cent.  Dig.  §§  890-896. 

47  Handley  v.  Stutz,  137  U.  S.  366,  11  Sup.  Ct.  117,  34  L.  Ed.  706; 
National  Bank  of  Commerce  v.  Allen,  90  Fed.  545,  33  C.  C.  A.  169 ; 
Alsop  v.  Conway,  188  Fed.  568, 110  C.  C.  A.  366 ;  Robertson  v.  Conway, 
188  Fed.  579,  110  C.  C.  A.  377.    See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
328;   Cent.  Dig.  §§  890-896. 

48  FISHBACK  v.  WESTERN  UNION  TEL.  CO.,  161  U.  S.  96,  16 
Sup.  Ct.  506,  40  L.  Ed.  630.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  329; 
Cent.  Dig.  §  897. 


§   99)  ORDINARY   CIVIL  JURISDICTION  235 

It  is  important  to  bear  in  mind  that  the  limitation  as  to 
amount  applies  only  to  the  first  paragraph  of  section  24 
of  the  Judicial  Code,  the  succeeding  paragraphs  being  ex- 
pressly excepted  from  its  operation.  Even  as  to  the  first 
paragraph,  it  does  not  apply  to  suits  by  the  United  States 
or  any  officer  thereof,  nor  to  suits  by  citizens  of  the  same 
state  claiming  lands  under  grants  from  different  states. 

SAME— FEDERAL  QUESTIONS 

99.  If  the  procedure  is  a  suit  as  just  explained  and  involves 
over  $3,000,  the  jurisdiction  extends  to  cases  aris- 
ing under  the  Constitution  or  laws  of  the  United 
States,  or  treaties  made  or  which  shall  be  made 
under  their  authority.  This  class  is  commonly  call- 
ed federal  questions,  and  a  federal  question  is  in- 
volved not  merely  when  the  construction  of  a  fed- 
eral statute  incidentally  arises,  but  when  the  case 
necessarily  turns  upon  the  construction  of  the  fed- 
eral laws,  as  when  the  plaintiff  would  be  defeated 
by  one  construction,  or  successful  by  another. 

In  the  class  under  discussion,  it  is  not  sufficient  that  the 
suit  must  be  at  law  or  in  equity,  and  must  involve  $3,000. 
In  addition,  one  of  several  other  conditions  must  concur: 
Either  (1)  the  case  must  arise  under  the  Constitution  or 
laws  of  the  United  States,  or  treaties  made  or  which  shall 
be  made  under  their  authority;  or  (2)  it  must  be  a  con- 
troversy between  citizens  of  different  states;  or  (3)  it 
must  be  a  controversy  between  citizens  of  a  state  and 
foreign  states,  citizens  or  subjects.  These  requisites  must 
now  be  considered  in  their  order. 

Cases  Arising  under  the  Constitution  or  Laws  of  the  United 
States,  or  Treaties  Made  or  Which  shall  be  made  under 
Their  Authority 

If  the  case  is  of  this  nature,  the  district  court  has  juris- 
diction independent  of  any  question  of  citizenship.  The 


236        DISTRICT   COURT — ORDINARY   CONTROVERSIES        (Ch.  11 

two  great  branches  of  jurisdiction  of  the  court  in  ordi- 
nary controversies  are,  first,  cases  depending  upon  the  na- 
ture of  the  controversy — that  is,  involving  a  federal  ques- 
tion, as  this  branch  is  usually  designated;  and,  second,  cas- 
es depending  upon  the  citizenship  of  the  parties. 

In  another  connection  (the  question  of  appeals  from  the 
state  courts  to  the  Supreme  Court)  it  will  be  found  that 
this  term  "federal  question"  is  used  in  a  rather  more  re- 
stricted sense  than  in  the  sense  in  which  it  is  used  as  defin- 
ing the  jurisdiction  of  the  federal  district  courts.  In  the  lat- 
ter class,  a  case  involves  a  federal  question  when  its  cor- 
rect decision  depends  upon  the  construction  of  the  federal 
Constitution  or  statutes,  or  when  the  plaintiff  would  be  de- 
feated by  one  construction  or  sustained  by  another.49 

Pleadings  must  Show  Federal  Question 

In  order  for  this  ground  of  jurisdiction  to  exist,  a  mere 
general  allegation  that  the  plaintiff's  case  rests  upon  a  con- 
struction of  the  federal  Constitution  or  statutes  is  not  suffi- 
cient. The  facts  in  his  pleading  must  show  this.  And  it 
must  also  appear  that  the  plaintiff's  own  case  necessarily 
depends  upon  the  construction  of  the  federal  Constitution 
or  statutes.  If  it  is  not  part  of  the  plaintiff's  case,  he  cannot 
give  jurisdiction  by  anticipating  in  his  pleading  the  defense 
which  he  expects  the  defendant  to  make,  and  stating  that 
such  defense  turns  upon  a  federal  question.50 

49  LITTLE  YORK  GOLD  WASHING  &  WATER  CO.  v.  KEYES, 
96  U.  S.  199,  24  L.  Ed.  656 ;  Tennessee  v.  Davis,  100  U.  S.  257,  25  L. 
Ed.  648;  post.  pp.  497,  505.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  284; 
Cent.  Dig.  §§  820-839. 

so  FLORIDA  C.  &  P.  R.  CO.  v.  BELL,  176  LT.  S.  321,  20  Sup.  Ct. 
399,  44  L.  Ed.  486 ;  Western  Union  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  178 
U.  S.  239,  20  Sup.  Ct.  867,  44  L.  Ed.  1052 ;  Arkansas  v.  Kansas  &  T. 
Coal  Co.,  183  U.  S.  185,  22  Sup.  Ct  47,  46  L.  Ed.  144 ;  Defiance  Wa- 
ter Co.  v.  Defiance,  191  TJ.  S.  184,  24  Sup.  Ct.  63,  48  L.  Ed.  140; 
Devine  v.  Los  Angeles,  202  TJ.  S.  313,  26  Sup.  Ct.  652,  50  L.  Ed.  1046 ; 
Louisville  &  N.  R.  Co.  v.  Mottley,  211  U.  S.  149,  29  Sup.  Ct.  42,  53 
L.  Ed.  126;  Earnhart  v.  Switzler,  179  Fed.  832,  105  C.  C.  A.  260. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  299;  Cent.  Dig.  §  8^1. 


§    99)  ORDINARY    CIVIL   JURISDICTION  237 

If,  however,  it  does  appear  from  the  plaintiff's  pleading 
that  a  federal  question  is  involved,  the  jurisdiction  of  the 
court  is  not  defeated  by  the  fact  that  other  nonfederal  ques- 
tions may  also  be  involved.51 

The  jurisdiction  depends  upon  the  plaintiff's  allegations, 
not  upon  the  construction  which  the  defendant  gives 
them.52 

As  a  general  rule,  the  jurisdiction  is  dependent  upon  the 
plaintiff's  own  statement ;  but  if  the  plaintiff  puts  in  a  fed- 
eral question  which  has  not  even  a  color  of  merit,  or  if  he 
raises  a  federal  question,  and  the  defendant  by  his  answer 
admits  his  construction  of  it,  the  court  may  dismiss  the  suit 
of  its  own  motion  under  another  section  of  the  act,  which 
permits  it  to  do  so  whenever  it  appears  that  a  case  giving 
the  federal  courts  jurisdiction  is  not  necessarily  involved.53 

Some  concrete  instances  of  suits  involving  federal  ques- 
tions may  make  this  clear,  bearing  in  mind  that  the  plain- 
tiff's pleading  must  show  the  necessary  jurisdictional  facts. 
A  suit  against  a  corporation  organized  under  an  act  of  Con- 
gress necessarily  involves  a  federal  question,  and  can  be 
brought  in  the  federal  courts,  if  the  other  requisites  of  ju- 
risdiction concur.54 

si  New  Orleans,  M.  &  T.  R.  Co.  v.  Mississippi,  102  U.  S.  135,  26  L. 
Ed.  96 ;  St.  Paul.  M.  &  M.  R.  Co.  v.  St.  Paul  &  N.  P.  R.  Co.,  68  Fed. 
2,  15  C.  C.  A.  167 ;  St.  Paul  &  N.  P.  R.  Co.  v.  St.  Paul,  M.  &  M.  R. 
Co.,  18  Sup.  Ct.  946,  42  L.  Ed.  1212 ;  San  Francisco  Gas  &  Electric 
Co.  v.  San  Francisco  (C.  C.)  189  Fed.  943.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §§  282,  284;  Cent.  Dig.  §§  820-839. 

52  Central  Ry.  Co.  of  New  Jersey  v.  Mills,  113  U.  S.  249,  5  Sup. 
Ct.  456,  28  L.  Ed.  949.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  299; 
Cent.  Dig.  §  841. 

ss  McCain  v.  Des  Moines,  174  U.  S.  168,  19  Sup.  Ct  644,  43  L.  Ed. 
936 ;  Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  U.  S.  282,  22  Sup. 
Ct.  681,  46  L.  Ed.  910.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  282,  284; 
Cent.  Dig.  §§  820-8S9. 

54  Union  Pac.  R.  Co.  v.  Harris,  158  U.  S.  326,  15  Sup.  Ct  843,  39 
L.  Ed.  1003;  Texas  &  P.  R.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup.  Ct 
905,  36  L.  Ed.  829 ;  A.  L.  Wolff  &  Co.  v.  Choctaw,  O.  &  G.  R.  Co.  (C. 
C.)  133  Fed.  601.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  293;  Cent. 
Dig.  §  835. 


238        DISTRICT   COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

So  a  suit  on  the  bond  of  a  United  States  marshal  for  an 
illegal  seizure  of  goods  under  a  writ  of  the  United  States 
court  involves  a  federal  question.55 

So,  too,  a  suit  on  a  clerk's  bond,  brought  by  a  private 
suitor,  which  raises  the  question  whether  the  sureties  on 
the  bond  were  liable  for  money  paid  into  court  on  a  tender, 
involves  a  federal  question.56  So  a  suit  by  a  materialman 
against  the  sureties  on  a  government  contractor's  bond.57 

A  suit  to  determine  the  validity  of  the  consolidation  of 
two  railway  companies,  authorized  by  act  of  Congress,  in- 
volves a  federal  question.58 

Suits  to  restrain  the  collection  of  taxes  alleged  to  violate 
the  constitutional  provision  as  to  due  process  of  law  are 
quite  frequent  in  the  federal  courts.  If  they  turn  upon  the 
question  whether  the  state  law  under  which  the  tax  is  as- 
sessed is  a  violation  of  the  federal  Constitution,  they  in- 
volve a  federal  question.  If  it  is  a  mere  question  whether 
they  involve  a  conflict  of  a  state  law  with  the  state  Consti- 
tution, they  do  not  involve  a  federal  question.59 

The  same  principle  applies  to  suits  under  the  due  process 
clause.60 

55  Bock  v.  Perkins,  139  U.  S.  628,  11  Sup.  Ct.  677,  35  L.  Ed.  314 ; 
Frank  v.  Leopold  &  Feron  Co.  (C.  C.)  169  Fed.  922.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  296;  Cent.  Dig.  §  838. 

so  Howard  v.  U.  S.,  184  U.  S.  676,  22  Sup.  Ct.  543,  46  L.  Ed.  754. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  296;  Cent.  Dig.  §  838. 

67  Act  Aug.  13,  1894,  28  Stat.  278,  c.  280  (U.  S.  Comp.  St  1901,  p. 
2523) ;  Mullin  v.  U.  S.,  109  Fed.  817,  48  C.  C.  A.  677.  Compare  Hen- 
ningsen  v.  United  States  Fidelity  &  Guaranty  Co.,  208  U.  S.  404,  28 
Sup.  Ct.  389,  52  L.  Ed.  547;  United  States  Fidelity  &  Guaranty  Co. 
v.  U.  S.,  204  U.  S.  349,  27  Sup.  Ct.  381,  51  L.  Ed.  516.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  296;  Cent.  Dig.  §  838. 

5  s  Ames  v.  Kansas,  111  U.  S.  449,  4  Sup.  Ct  437,  28  L.  Ed.  482. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  233;  Cent.  Dig.  §  835. 

69  Village  of  Norwood  v.  Baker,  172  U.  S.  269,  19  Sup.  Ct  187,  43 
L.  Ed.  443 ;  Wheeler  v.  New  York,  N.  H.  &  H.  R.  Co.,  178  U.  S.  321, 
20  Sup.  Ct.  949,  44  L.  Ed.  1085;  McCain  v.  Des  Moines,  174  U.  S. 
168,  19  Sup.  Ct.  644,  43  L.  Ed.  936;  West  v.  Louisiana,  194  U.  S, 
258,  24  Sup.  Ct.  650,  48  L.  Ed.  965.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§§  282,  297;  Cent.  Dig.  §§  820-824,  889. 

eo  San  Francisco  Gas  &  Electric  Co.  v.  San  Francisco  (C.  C.)  18& 


§   99)  ORDINARY   CIVIL  JURISDICTION  239 

In  order  for  the  federal  court  to  have  jurisdiction,  it  must 
not  only  involve  a  federal  question,  but  it  must  be  a  suit 
of  which  the  court  can  take  jurisdiction.  If,  for  instance, 
it  is  a  suit  to  enjoin  a  tax,  and  of  such  a  character  that  an 
equity  court  has  no  jurisdiction,  then  the  federal  equity 
court  cannot  take  jurisdiction.61 

A  common  character  of  controversy  is  that  class  in  which 
state  legislation  is  alleged  to  violate  the  obligation  of  con- 
tracts. This  is  undoubtedly  a  federal  question.  There  are 
numerous  illustrations  of  this  class  in  cases  which  have 
gone  to  the  Supreme  Court,  and  cases  involving  the  right 
of  cities  after  having  given  one  waterworks  company  or 
public  service  company  the  right  to  supply  them  with  utili- 
ties, to  give  the  same  right  to  subsequent  companies,  or  to 
undertake  the  supply  themselves.62 

Another  instance  is  where  it  is  claimed  that  subsequent 
legislation  infringes  an  exemption  from  taxation  conferred 
by  a  charter.68 

The  question  what  effect  a  federal  judgment  has  as  a 
lien  by  virtue  of  state  or  federal  statutes,  when  such  judg- 
ment is  a  necessary  link  in  a  chain  of  title,  is  a  federal  ques- 
tion.64 

Fed.  943.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  282;  Cent.  Dig.  §§ 
820-824. 

6i  Indiana  Mfg.  Co.  v.  Koehne,  188  U.  S.  681,  23  Sup.  Ct.  452,  47 
L.  Ed".  651.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  282;  Cent.  Dig.  §§ 
820-824. 

ea  Hamilton  Gaslight  &  Coke  Co.  v.  Hamilton,  146  U.  S.  258,  13 
Sup.  Ct.  90,  36  L.  Ed.  963 ;  Vicksburg  Waterworks  Co.  v.  Vicksburg, 
185  U.  S.  65,  22  Sup.  Ct.  585,  46  L.  Ed.  808 ;  City  of  Dawson  v.  Co- 
lumbia Ave.  Saving  Fund,  Safe  Deposit,  Title  &  Trust  Co.,  197  U. 
S.  178,  25  Sup.  Ct  420,  49  L.  Ed.  713 ;  American  Telephone  &  Tele- 
graph Co.  of  Alabama  v.  New  Decatur  (C.  C.)  176  Fed.  133.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  282;  Cent.  Dig.  §§  820-824. 

«s  Illinois  Cent.  R.  Co.  v.  Adams,  180  U.  S.  28,  21  Sup.  Ct  251,  45 
L.  Ed.  410;  Jetton  v.  University  of  the  South,  208  U.  S.  489,  28 
Sup.  Ct.  375,  52  L.  Ed.  584.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  282; 
Cent.  Dig.  §§  820-82.0. 

e*  Cooke  v.  Avery,  147  U.  S.  375,  13  Sup.  Ct.  340,  37  L.  Ed.  209. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  282;  Cent.  Dig.  §§  820-824. 


240        DISTRICT  COURT — ORDINARY   CONTROVERSIES        (Ch.  11 

But  the  mere  fact  that  suit  is  brought  upon  a  judgment 
of  a  federal  court  does  not  make  it  a  federal  question.05 

Many  cases  involving  federal  questions  arise  out  of  the 
federal  control  or  influence  over  navigable  waters.  The 
question  whether  certain  structures  are  obstructions  to  nav- 
igation in  waters  claimed  to  be  so  navigable  as  to  fall  under 
the  jurisdiction  of  the  United  States,  and  the  question  as 
to  the  right  to  erect  a  dock  claimed  by  virtue  of  an  act  of 
Congress,  are  federal  questions.66 

But  not  mere  questions  of  conflicting  riparian  rights, 
though  tracing  back  to  federal  patents.67 

Suits  based  upon  the  interstate  commerce  act,  or  the 
commercial  clause  of  the  Constitution,  involve  federal  ques- 
tions.68 

National  Banks 

It  has  been  stated  above  that  suits  against  corporations 
organized  under  acts  of  Congress  per  se  involve  federal 
questions.  Independent  of  statute,  this  would  be  true  as  to 
suits  against  national  banks,  but  Congress  has  seen  fit  to 
provide  expressly  that  the  federal  courts  should  not  have 
jurisdiction  in  suits  against  national  banks  under  any  other 
circumstances  than  such  as  they  would  have  in  cases 
against  individual  citizens  of  the  same  state.69 

es  Provident  Sav.  Life  Assur.  Soc.  v.  Ford.  114  U.  S.  635,  5  Sup. 
Ct  1104,  29  L.  Ed.  261.  Compare  H.  C.  Cook  Co.  v.  Beecher,  217  U.  S. 
497,  30  Sup.  Ct.  601,  54  L.  Ed,  855.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §§  282,  290;  Cent.  Dig.  §§  820-832. 

66  U.  S.  v.  Bellingham  Bay  Booin  Co.,  176  U.  S.  211,  20  Sup.  Ct 
343,  44  L.  Ed.  437 ;  Cummings  v.  Chicago,  188  U.  S.  410,  23  Sup.  Ct 
472,  47  L.  Ed.  525;  North  Shore  Boom  &  Driving  Co.  v.  Nicomen 
Boom  Co.,  212  U.  S.  406,  29  Sup.  Ct  355,  53  L.  Ed.  574.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  288;  Cent.  Dig.>§  830. 

er  Devine  v.  Los  Angeles,  202  U.  S.  313,  26  Sup.  Ct  652,  50  L.  Ed. 
1046;  McGilvra  v.  Ross,  215  U.  S.  70,  30  Sup.  Ct  27,  54  L.  Ed.  95. 
Also,  as  analogous,  Donnelly  v.  U.  S.,  228  IT.  S.  243,  33  Sup.  Ct.  449, 

57  L.  Ed. .  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  288;  Cent.  Dig. 

§  830. 

es  in  re  Lennon,  166  U.  S.  548,  17  Sup.  Ct  658,  41  L.  Ed.  1110. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  289;  Cent.  Dig.  §  830. 

69  Judicial  Code,  §  24,  par.  16;    CONTINENTAL  NAT.  BANK  v. 


§    99)  ORDINARY    CIVIL   JURISDICTION  241 

Under  this,  the  mere  fact  that  the  suit  is  against  a  na- 
tional bank  does  not  give  jurisdiction.  But  if  the  question 
raised  in  the  suit  is  such  as  would  constitute  a  federal  ques- 
tion independent  of  the  fact  that  the  defendant  is  a  national 
bank,  the  court  would  have  jurisdiction.  For  instance,  the 
question  whether  a  national  bank  which  had  acquired  stock 
in  a  state  bank,  and  was  sued  as  a  stockholder,  had  a  right 
to  acquire  such  stock,  or  whether  it  was  acquired  in  the 
regular  course  of  business,  constitutes  a  federal  question, 
and  gives  jurisdiction.70 

A  suit  for  damages  against  directors  of  a  national  bank 
for  making  a  false  report,  though  in  form  an  action  of  de- 
ceit, raises  a  federal  question.71 

On  the  other  hand,  where  a  stockholder  of  a  national 
bank  had  sold  his  stock,  and  the  purchaser  had  failed  to 
transfer  it,  in  consequence  of  which  the  vendor  remained 
as  a  stockholder  on  the  books  of  the  bank,  and  was  sued 
after  the  failure  of  the  bank  for  his  stock  assessment,  a 
suit  by  him  against  the  purchaser  for  failing  to  transfer 
did  not  involve  a  federal  question.72 

A  suit  based  on  the  refusal  of  election  officers  to  receive 
a  vote  at  a  congressional  election  is  essentially  a  suit  aris- 
ing under  the  federal  Constitution,  of  which  the  court  has 
jurisdiction,  though  it  may  subsequently  decide  that  there 
is  no  merit  in  the  contention.78 

BUFORD,  191  U.  S.  119,  24  Sup?  Ct.  54,  48  L.  Ed.  119 ;  ante,  p.  82. 
See  "Courts"  Dec.  Dig.  (Key-No.)  §  294;  Cent.  Dig.  §  836;  "Banks 
and  Banking,"  Cent.  Dig.  §§  1056,  1059. 

70  California  Nat  Bank  v.  Kennedy,  167  U.  S.  362,  17  Sup.  Ct.  831, 
42  L.  Ed.  198.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  299;    Cent.  Dig. 
§841. 

71  Thomag  v.  Taylor,  224  U.  S.  73,  32  Sup.  Ct.  403,  56  L.  Ed.  673. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  299;   Cent.  Dig.  §  841. 

72  Le  Sassier  v.  Kennedy,  123  U.  S.  521,  8  Sup.  Ct  244,  31  L.  Ed. 
262 ;  In  re  Jones,  164  U.  S.  691,  17  Sup.  Ct  222,  41  L.  Ed.  601.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  294;  Cent.  Dig.  §  836;  "Banks  and 
Banking,"  Cent.  Dig.  §§  1056-1059. 

73  Swafford  v.  Templeton,  185  U.  S.  487,  22  Sup.  Ct  783,  46  L.  Ed. 
1005.    Compare  this  case  with  the  case  of  Excelsior  Wooden  Pipe  Co. 

HUGHES  FED.PB.(2o  ED.)— 16 


242        DISTRICT   COUKT — ORDINARY   CONTBOVER8IE8       (Ch.  11 

It  is  not  enough,  however,  in  order  to  confer  a  federal 
question,  that  some  act  of  Congress  or  title  claimed  under 
the  United  States  may  be  incidentally  involved.  The  case 
must  turn  necessarily  upon  the  construction  of  a  federal 
question.  This  is  illustrated  by  controversies  arising  out 
of  patents  and  trade-marks.  If  the  jurisdiction  is  invoked 
on  the  ground  of  an  infringement,  then  a  federal  question  is 
involved ;  but  if,  on  the  other  hand,  the  controversy  is  sim- 
ply over  contracts  arising  out  of  grants  of  the  right  to  sell 
patents,  and  turns  upon  the  construction  of  these  contracts 
between  the  parties,  a  federal  question  is  not  involved, 
though  the  subject  of  litigation  is  a  patent,  or  trade-mark.74 

Nor  is  a  federal  question  involved  simply  from  the  fact 
that  suit  is  brought  against  a  receiver  appointed  by  a  fed- 
eral court.  The  basis  of  the  suit  itself  must  involve  a  fed- 
eral question,  and  the  mere  fact  that  a  federal  receiver  is 
sued  is  not  sufficient  to  give  jurisdiction.75 

Nor  is  it  sufficient  to  constitute  a  federal  question  that 

v.  Pacific  Bridge  Co.,  185  U.  S.  282,  22  Sup.  Ct.  681,  46  L.  Ed.  910, 
in  order  to  ascertain  how  far  the  jurisdiction  of  the  court  is  de- 
feated by  the  defendant's  pleading.  The  true  distinction  appears  to 
be  that  if  the  claim  of  the  plaintiff  is  bona  fide  and  appears  clearly 
upon  his  bill,  and  that  claim  is  not  formally  admitted  by  the  plead- 
ings, the  court  has  jurisdiction,  though  the  facts  in  the  case,  on  the 
plaintiff's  own  proof,  should  show  that  his  claim  is  not  well  founded. 
But  if  the  claim  as  set  up  by  him  is  formally  admitted  on  the  plead- 
ings, then  there  is  no  controversy  between  the  parties  involving  a 
federal  question,  and  the  court  may  consider  this  as  showing  a  want 
of  federal  jurisdiction.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  281, 
282;  Cent.  Dig.  §§  820-825. 

74  Pratt  v.  Paris  Gaslight  &  Coke  Co.,  168  U.  S.  255,  18  Sup.  Ct. 
62,  42  L.  Ed.  458;  Excelsior  Wooden  Pipe  Co.  v.  Pacific  Bridge  Co., 
185  U.  S.  282,  22  Sup.  Ct.  681,  46  L.  Ed.  910;  Baglin  v.  Cusenier  Co., 
221  U.  S.  580,  31  Sup.  Ct  669,  55  L.  Ed.  863 ;  Henry  v.  A.  B.  Dick 
Co.,  224  U.  S.  1,  32  Sup.  Ct.  364,  56  L.  Ed.  645 ;  The  Fair  v.  Kohler 

Die  &  Specialty  Co.,  228  U.  S.  22,  33  Sup.  Ct.  410,  57  L.  Ed.  ; 

post,  p.  490.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  290-292;  Cent.  Dig. 
§§  832-834. 

76  Bausman  v.  Dixon,  173  U.  S.  113,  19  Sup.  Ct.  316,  43  L.  Ed.  633; 
Gableman  v.  Peoria,  D.  &  E.  R.  Co.,  179  U.  S.  335,  21  Sup.  Ct  171,  45 
L.  Ed.  220.  See  "Uourts,"  Dec.  Dig.  (Key-No.)  §  295;  Cent.  Dig.  § 
837. 


§    100)  ORDINARY   CIVIL  JURISDICTION  243 

the  title  in  litigation  traces  back  to  the  United  States, 
where  no  question  of  the  effect  of  the  federal  link  in  the 
title  is  involved,  but  merely  conflicting  questions  of  title 
between  diverse  claimants.78 


SAME— CONTROVERSIES   BETWEEN   CITIZENS 

OF  DIFFERENT  STATES— NATURAL 

PERSONS 

100.  In  suits  involving  over  $3,000,  the  jurisdiction  extends 
to  cases  involving  controversies  between  citizens 
of  different  states.  The  word  "citizen,"  in  this 
connection,  is  not  used  in  the  political  sense  of  a 
voter,  but  in  the  sense  of  being  a  permanently 
domiciled  member  or  subject  of  a  state.  Citizen- 
ship of  the  state  and  of  the  United  States  must 
both  concur. 

In  considering  what  is  meant  in  the  Constitution  and 
statutes  by  "citizens  of  different  states,"  the  question  will 
first  be  discussed  as  to  natural  persons. 

The  word  "citizen"  is  not  used  in  this  connection  in  its 
political  sense,  or  in  reference  to  any  political  rights,  like 
the  right  to  vote.  It  is  used  in  the  sense  of  its  original  def- 
inition ;  that  is,  as  an  integral  part  of  the  membership  of  a 
state,  or  a  subject  of  a  state.  It  means  those  who  have  a 
permanent  domicile  in  a  state,  and  not  those  who  may 
merely  have  a  temporary  residence  there.  The  distinction 
between  "domicile"  and  "residence"  is  well  known  in  the 
law.  The  meaning  of  "domicile"  is  explained  in  Mitchell 


76  St  Paul  &  N.  P.  Ry.  Co.  v.  St.  Paul,  M.  &  M.  R.  Co.,  68  Fed.  2, 
15  C.  C.  A.  167;  Id.,  18  Sup.  Ct.  946,  42  L.  Ed.  1212;  Northern  Pac. 
R.  Co.  v.  Soderberg,  188  TJ.  S.  526,  23  Sup.  Ct.  365,  47  L.  Ed.  575; 
Shulthls  v.  McDougal,  225  U.  S.  561,  32  Sup.  Ct.  704,  56  L.  Ed.  1205. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  285;  Cent.  Dig.  §§  827,  828. 


244        DISTRICT   COURT — ORDINARY  CONTROVERSIES        (Ch.  11 

v.  U.  S.77  It  is  defined  as  a  "residence  at  a  particular  place, 
accompanied  with  positive  or  presumptive  proof  of  an  in- 
tention to  remain  there  for  an  unlimited  time ;  and,  when 
once  acquired,  it  is  presumed  to  continue  until  positive 
proof  of  change."  In  order  to  give  jurisdiction  to  the  fed- 
eral courts  on  this  ground,  two  things  must  concur :  The 
parties  must  be  citizens  of  a  state,  in  the  sense  of  being  reg- 
ularly domiciled  in  that  state,  and  not  having  a  mere  tem- 
porary residence  there;  and  they  must  also  be  citizens  of 
the  United  States,  within  the  requirements  of  the  four- 
teenth amendment,  which  provides  that  all  persons  born  or 
naturalized  in  the  United  States  are  citizens  of  the  United 
States  and  of  the  state  where  they  reside.  A  party  may  be 
a  citizen  of  the  United  States,  and  yet  the  federal  courts 
would  not  have  jurisdiction  on  the  ground  of  citizenship. 
For  instance,  a  person  having  his  permanent  abode  in  the 
District  of  Columbia  is  a  citizen  of  the  United  States,  but 
the  federal  courts  have  no  jurisdiction  on  the  ground  of 
citizenship  where  he  is  on  one  side  of  a  controversy,  as  the 
District  of  Columbia  is  not  a  state.78 

So  a  party  regularly  domiciled  in  a  territory  is  a  citizen 
of  the  United  States,  but  he  is  not  a  citizen  of  a  state,  and 
therefore  cannot  give  jurisdiction  to  the  federal  courts.79 

On  the  other  hand,  a  party  may  be  regularly  domiciled  in 
a  state,  and  a  citizen  of  a  state  in  the  political  sense  of  the 
word,  and  yet  the  federal  courts  would  not  have  jurisdic- 
tion unless  he  is  also  a  citizen  of  the  United  States.  For 


77  21  Wall.  350,  22  L.  Ed.  584;   Ex  parte  Petterson  (D.  C.)  166  Fed. 
536;    Pickering  v.  Winch,  48  Or.  500,  87  Pac.  763,  9  L.  R.  A.  (N.  S.) 
1159;    Anderson  v.  Blakesly  (Iowa)  136  N.  W.  210.     See  "Courts," 
Dec.  Dig.  (Key-No.)  §  307;    Cent.  Dig.  §§  850-854;    "Domicile,"  Dec. 
Dig.  (Key-No.)  §  2;  Cent.  Dig.  §  2. 

78  Barney  v.  Baltimore,  6  Wall.  280,  18  L.  Ed.  825;   Hooe  v.  Jamie- 
son,  166  U.  S.  395,  17  Sup.  Ct.  596,  41  L.  Ed.  1049.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  307;   Cent.  Dig.  §§  850-854. 

79  Watson  v.  Bonfils,  116  Fed.  157,  53  C.  C.  A.  535;   Clark  v.  South- 
era  Pac.  Co.  (C.  C.)  175  Fed.  122.    See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  307;  Cent.  Dig.  §§  850-854. 


§    100)  ORDINARY    CIVIL   JURISDICTION  245 

instance,  an  alien  who  has  never  been  naturalized  cannot  be 
a  proper  party  to  a  suit  in  the  federal  courts  based  on  the 
ground  of  diverse  citizenship,  though  the  state  may  have 
given  an  unnaturalized  alien  the  right  to  vote.80 

That  citizenship  of  the  United  States  alone  is  not  suffi- 
cient to  confer  jurisdiction  is  well  settled.81 

Mere  residence  is  not  sufficient  to  confer  jurisdiction,  but 
domicile  is  required.82 

The  fact  that  citizenship,  in  this  connection,  does  not 
mean  political  citizenship  or  the  right  to  vote,  is  illustrated 
by  the  fact  that  women  who  have  no  right  to  vote  can  still 
sue  in  the  federal  courts  on  the  ground  of  diverse  citizen- 
ship; and  the  same  rule  applies  to  infants.83 

In  considering  the  question  of  domicile,  the  ordinary 
rules  of  law  in  reference  to  the  domicile  of  different  parties 
apply.  For  instance,  the  domicile  of  a  child  is  that  of  the 
parent.84 

An  interesting  case  on  this  point  is  Lamar  v.  Micou,86 
which  holds  that  the  infant's  domicile  was  that  of  the  fa- 


so  Poppenhauser  v.  India-Rubber  Comb  Co.  (C.  C.)  14  Fed.  707; 
Lanz  v.  Randall,  Fed.  Cas.  No.  8,080.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  307;  Cent.  Dig.  §§  850-854. 

si  Nichols  v.  Nichols  (C.  C.)  92  Fed.  1;  Pope  v.  Williams,  193  U.  S. 
621,  24  Sup.  Ct.  573,  48  L.  Ed.  814.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  307;  Cent.  Dig.  §§  850-854. 

sz  Wolfe  v.  Hartford  Life  &  Annuity  Ins.  Co.,  148  U.  S.  389,  13 
Sup.  Ct.  602,  37  L.  Ed.  493 ;  Neel  v.  Pennsylvania  Co.,  157  U.  S.  153, 
15  Sup.  Ct.  589,  39  L.  Ed.  654;  Collins  v.  Ashland  (D.  C.)  112  Fed. 
175 ;  Harding  v.  Standard  Oil  Co.  (C.  C.)  182  Fed.  421.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  SOT;  Cent.  Dig.  §§  850-854. 

ss  Minor  v.  Happersett,  21  Wall.  162,  169,  22  L.  Ed.  627;  Blumen- 
thal  v.  Craig,  81  Fed.  320,  26  C.  C.  A.  427.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  307;  Cent.  Dig.  §§  850-854. 

s*  Dresser  v.  Edison  Illuminating  Co.  (C.  C.)  49  Fed.  257;  Hess  v. 
Kimble,  79  N.  J.  Eq.  230,  81  Atl.  363.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  307;  Cent.  Dig.  §§  850-854;  "Domicile,"  Dec.  Dig.  (Key-No.)  § 
5;  Cent.  Dig.  §§  24-35. 

85  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  307;  Cent.  Dig.  §§  850-854;  "Domicile,"  Dec.  Dig. 
(Key-No.)  §  5;  Cent.  Dig.  §§  24-85. 


246        DISTRICT.  COURT — ORDINARY   CONTROVERSIES        (Ch.  11 

ther  or  the  widowed  mother,  but  did  not  change,  when  the 
mother  remarried,  to  the  domicile  of  the  second  husband, 
nor  to  that  of  a  guardian  at  a  mere  temporary  residence  of 
the  child.  So,  too,  the  domicile  of  the  wife  is  that  of  the 
husband  where  they  are  not  living  apart  under  a  legal  sep- 
aration.86 

Domicile  may  often  be  proved  by  declarations,  provided 
the  court  is  satisfied  that  the  declaration  was  not  made  for 
the  purpose  of  manufacturing  evidence  on  the  subject.87 

A  domicile  may  be  actually  acquired,  and,  though  acquir- 
ed for  the  purpose  of  enabling  the  party  to  sue  in  the  fed- 
eral courts,  it  is  still  his  domicile,  and  entitles  him,  under 
such  circumstances,  to  sue;  but,  if  the  change  of  domicile 
is  merely  colorable,  the  court  will  dismiss  any  suit  of  its 
own  motion.88 

A  state  cannot  sue  in  the  federal  courts  on  the  ground  of 
diverse  citizenship,  as  a  state  cannot,  in  the  nature  of 
things,  be  a  citizen  of  a  state.89 

In  considering  the  parties  for  the  purpose  of  jurisdiction, 
the  court  looks  at  the  character  of  the  party  on  the  record 
who  is  the  actual  dominus  litis,  not  at  mere  nominal  parties 
or  parties  beneficially  interested.  For  instance,  where  a 
bond  is  made  payable  to  a  state  or  marshal,  any  suit 
brought  by  the  party  interested  in  the  breach  of  the  bond 
as  relator  is  governed  by  his  citizenship,  and  not  by  the 


se  Nichols  v.  Nichols  (C.  0.)  92  Fed.  1.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  SOT;  Cent.  Dig.  §§  850-854;  "Domicile,"  Dec.  Dig.  (Key- 
No.)  §  5;  Cent.  Dig.  §§  24-35. 

87  Doyle  v.  Clark,  Fed.  Cas.  No.  4,053.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  323;  Cent.  Dig.  §  885;  "Domicile,"  Dec.  Dig.  (Key-No.) 
§§  8-10;  Cent.  Dig.  §§  36-39. 

ss  Morris  v.  Gilmer,  129  U.  S.  315,  9  Sup.  Ct.  289,  32  L.  Ed.  690; 
Barney  v.  Baltimore,  6  Wall.  280,  18  L.  Ed.  825.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  307;  Cent.  Dig.  §§  850-854. 

so  Postal  Tel.  Cable  Co.  v.  Alabama,  155  U.  S.  482,  15  Sup.  Ct 
192,  39  L.  Ed.  231.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  307;  Cent. 
Dig.  §§  850-854;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  26,  40; 
Cent.  Dig.  §§  60-63,  81. 


§    100)  ORDINARY    CIVIL   JURISDICTION  247 

citizenship  of  the  formal  payee,  who  has  no  actual  inter- 
est in  the  suit.90 

For  the  same  reason,  where  a  suit  is  brought  by  a  party 
in  a  representative  character,  his  citizenship,  and  not  that 
of  the  parties  for  whose  benefit  the  suit  is  really  brought, 
is  the  test.  An  illustration  of  this  is  a  suit  by  a  trustee,  in 
which  case  his  citizenship,  and  not  that  of  the  beneficiaries, 
governs.91 

So,  in  a  suit  by  an  administrator,  his  citizenship,  and  not 
that  of  the  beneficiaries  in  the  estate,  is  the  test.92 

The  same  principle  applies  to  the  suit  of  a  guardian  for 
the  benefit  of  his  ward,  where  the  guardian  can  sue  in  his 
own  name.93 

On  the  other  hand,  a  suit  by  a  minor  through  his  next 
friend  is  regulated  by  the  citizenship  of  the  minor,  as  a  next 
friend  is  strictly  hardly  a  party  to  the  suit  at  all.94 

If  the  relation  of  the  parties  is  such  at  the  institution  of 
suit  as  to  give  the  court  jurisdiction,  the  substitution'  of 
new  parties,  or  the  change  of  residence  of  the  old  parties, 
will  not  divest  a  jurisdiction  once  acquired.95 

so  Indiana  ex  rel.  Stanton  v.  Glover,  155  U.  S.  513,  15  Sup.  Ct  186, 
39  L.  Ed.  243 ;  Howard  v.  U.  S.,  184  U.  S.  676,  22  Sup.  Ct.  543,  546, 

46  L.  Ed.  754;  Hollenbach  v.  Elmore  &  H.  Contracting  Co.  (C.  C.) 
174  Fed.  845.    Compare  United  States  Fidelity  &  Guaranty  Co.  v.  U. 
S.,  204  U.  S.  349,  27  Sup.  Ct.  381,  51  L.  Ed.  516.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  30.9;  Cent.  Dig.  §.857. 

»i  Blumenthal  v.  Craig,  81  Fed.  320,  26  C.  C.  A.  427.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  311;  Cent.  Dig.  §  858. 

92  Cincinnati,  H.  &  D.  R.  Co.  v.  Thiebaud,  114  Fed.  918,  52  C.  C.  A. 
538.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  311;   Cent.  Dig.  §  858. 

93  Mexican  Cent.  R.  Co.  v.  Eckman,  187  U.  S.  429,  23  Sup.  Ct.  211, 

47  L.  Ed.  245.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  311;  Cent.  Dig. 
§  858. 

94  Blumenthal  v.  Craig,  81  Fed.  320.  26  C.  C.  A.  427.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  311;  Cent.  Dig.  §  858. 

9BHardenbergh  v.  Ray,  151  U.  S.  112,  14  Sup.  Ct.  305,  38  L.  Ed. 
93 ;  Collins  v.  Ashland  (D.  C.)  112  Fed.  175.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §§  317,  319;  Cent.  Dig.  §  864. 


248  DISTRICT   COURT ORIGINAL  JURISDICTION        (Ch.  12 


CHAPTER  XII 

THE  DISTRICT  COURT  (Continued)— ORIGINAL  JURISDICTION 

(Continued) 

101.  Same — Same — Corporations. 

102.  Same — Same — Plurality  of  Litigants. 

103.  Same — Controversies  between  Citizens  of  a  State  and  Foreign 

States,  Citizens,  or  Subjects. 

104.  Same — Venue  of  Actions. 

105.  Same — Same — Rule  when  Litigants  are  Numerous. 

106.  Same — Same — Suits  against  Defendants  of  Different  Districts 

in  Same  State,  and  Suits  in  Rein. 


SAME— SAME— CORPORATIONS 

101.  For  purposes  of  federal  jurisdiction  a  corporation  is 
considered  a  citizen  of  the  state  which  gives  it  its 
charter. 

Frequently  corporations  hold  legislative  power  from 
more  than  one  state.  In  such  case  a  mere  license 
or  enabling  act  does  not  make  it  a  corporation  of 
the  second  state  also. 

1.  How  Far  a  Citizen  of  the  State  Creating  It 

At  the  time  of  the  adoption  of  the  Constitution  the  part 
played  by  corporations  in  the  business  of  the  country  was 
slight.  It  is  a  matter  of  doubt  whether  the  framers  of  the 
Constitution  had  them  in  mind  at  all.  Consequently, 
when  the  question  was  first  raised  whether  a  corporation 
was  a  citizen  in  the  sense  in  which  that  term  was  used  in 
reference  to  the  jurisdiction  of  the  federal  courts,  it  was  de- 
cided that  a  corporation  could  only  be  treated  as  a  citizen, 
for  the  purposes  of  jurisdiction,  in  case  all  the  corporators 
composing  the  corporation  were  citizens  of  the  state  of 


§    101)  ORDINARY    CIVIL   JURISDICTION  249 

its  creation,  and  this  was  a  matter  of  averment  and  proof 
in  each  case.1 

This  remained  the  doctrine  for  a  great  many  years,  but 
the  increasing  importance  of  corporations  rendered  it  nec- 
essary for  the  court  to  consider  the  question  more  thor- 
oughly, and  consequently,  in  Louisville,  C.  &  C.  R.  Co.  v. 
Letson,2  the  Supreme  Court  based  the  jurisdiction  of  the 
federal  courts  over  corporations  on  the  theory  that  the  cor- 
poration was  itself  an  inhabitant  of  the  state  of  its  crea- 
tion, contracting  in  its  own  name,  and  having  a  legal  ex- 
istence independent  of  its  membership. 

It  has  been  seen  that  the  word  "citizen"  is  not  used  in 
its  political  sense,  but  means  a  person  with  a  permanent 
domicile,  or  a  subject.  Hence,  when  this  last  test  was  laid 
down  by  the  court,  it  came  pretty  close  to  the  doctrine 
which  had  been  applied  in  the  case  of  individuals.  But 
not  content  with  this,  the  court  did  not  take  long  to  go  a 
step  further  to  the  final  conclusion  that  after  all,  when  a 
corporation  is  chartered  by  a  state,  there  is  a  conclusive 
presumption  that  its  corporators  are  all  citizens  of  the  same 
state;  that,  properly  speaking,  the  individual  stockholders 
are  not  parties  at  all,  but  that  the  corporation  stands  in 
the  position  of  their  representative  or  trustee;  and  hence 
an  averment  that  a  corporation  is  incorporated  under  the 
laws  of  a  certain  state  shows  that  it  has  a  domicile  in  or 
is  a  subject  or  citizen  of  that  state.3 

The  test  laid  down  in  this  latter  case  is  that,  in  order 

1  Bank  of  TJ.  S.  v.  Deveaux,  5  Cranch,  61,  3  L.  Ed.  38;  Commercial 
&  R.  Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  60,  10  L.  Ed.  354.     See 
"Corporations,"  Dec.   Dig.   (Key-No.)   §  52;    Cent.  Dig.   §§   140-150; 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  274,  293,  294,  314;    Cent.  Dig.  §§ 
814,  835,  836,  860. 

2  2  How  497,  11  L.  Ed.  353.    See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
314;  Cent.  Dig.  §  860. 

s  ST.  LOUIS  &  S.  F.  R.  CO.  v.  JAMES,  161  U.  S.  545,  16  Sup.  Ct. 
621,  40  L.  Ed.  802.  Compare  Doctor  v.  Harrington,  196  U.  S.  579,  25 
Sup.  Ct.  355,  49  L.  Ed.  606.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§ 
274,  314;  Cent.  Dig.  §§  814,  860. 


250  DISTRICT   COURT — ORIGINAL  JURISDICTION        (Ch.  12 

to  make  a  corporation  a  citizen  in  the  spirit  and  letter  of 
the  Constitution,  it  must  be  created  out  of  natural  persons 
whose  citizenship  of  the  state  creating  it  could  be  imputed 
to  the  corporation  itself.  Hence  it  follows,  from  the 
ground  on  which  these  decisions  have  rested,  that  the  al- 
legation that  a  corporation  is  a  citizen  of  a  state  is  mean- 
ingless, but  the  allegation  should  be  that  it  is  a  corpora- 
tion organized  under  the  laws  of  that  state.* 

The  principle  of  this  line  of  decisions  applies  as  well  to 
foreign  corporations  as  to  those  organized  under  the  laws 
of  a  state.  They,  too,  are  conclusively  presumed  to  be 
composed  of  citizens  or  subjects  of  the  foreign  govern- 
ment creating  them.5 

Nor  does  a  state  requirement  that  they  become  domi- 
ciled in  a  state  in  order  to  obtain  a  license  to  do  business 
affect  their  status  for  purposes  of  jurisdiction.6  ' 

Under  section  24,  par.  16,  of  the  Judicial  Code,  a  national 
bank,  for  purposes  of  jurisdiction,  is  treated  as  a  corpora- 
tion of  the  state  in  which  it  is  located.7 

A  corporation  organized  under  the  laws  of  a  territory 
becomes  a  corporation  of  a  state  when  the  territory  be- 
comes a  state.8 

But  these  principles  apply  only  to  corporations.  They 
do  not  apply  to  unincorporated  associations,  nor  to  joint- 
stock  companies  which  are  not  so  organized  as  to  amount 

*  Baltimore  &  O.  R.  Co.  v.  McLaughlin,  73  Fed.  519,  19  O.  C.  A. 
551 ;  Thomas  v.  Ohio  State  University,  195  U.  S.  207,  25  Sup.  Ct  24, 
49  L.  Ed.  160.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  814;  Cent.  Dig. 
§  860. 

o  National  S.  S.  Co.  v.  Tugman,  106  U.  S.  118,  1  Sup.  Ct  58,  27  L. 
Ed.  87.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  §  860. 

«  St.  Louis  &  S.  F.  R.  Co.  v.  Cross  (C.  C.)  171  Fed.  480.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  814;  Cent.  Dig.  §  860. 

t  CONTINENTAL  NAT.  BANK  OF  MEMPHIS  v.  BUFORD,  191 
U.  S.  119,  24  Sup.  Ct  54,  48  L.  Ed.  119.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §§  294,  814;  Cent.  Dig.  §§  886,  860. 

s  Shulthis  v.  McDougal,  225  U.  S.  561,  32  Sup.  Ct.  704,  56  L.  Ed. 
1205.  See  "Courts,"  Deo.  Dig.  (Key-No.)  §§  814,  S82;  Cent.  Dig.  § 
860. 


§    101)  ORDINARY   CIVIL   JURISDICTION  251 

to  corporations.9  Nor  do  they  apply  to  partnerships  or 
limited  partnership  associations  so  long  as  they  are  not 
imbued  with  the  character  of  corporations.10 

Status  of  Corporations  under  Legislation  of  More  than  One 
State 

This  is  one  of  the  most  difficult  questions  in  federal  ju- 
risprudence. Its  difficulty  arises  from  the  fact  that  wheth- 
er the  corporation  is  a  corporation  of  one  state  or  the  oth- 
er, or  of  both  states  granting  them  privileges,  is  a  question 
of  legislative  intent,  dependent  upon  the  statute  to  be 
passed  upon  in  each  case. 

The  mere  grant  to  a  corporation  already  organized  un- 
der the  laws  of  one  state  of  a  privilege  or  license  by  anoth- 
er state  does  not  constitute  it  a  corporation  of  the  second 
state.  Though  the  legislation  of  the  second  state  goes 
so  far  as  to  require  the  corporation  to  file  its  charter  in 
some  office  of  the  second  state  and  agree  to  be  considered  a 
domestic  corporation  of  that  state,  it  still  remains  a  cor- 
poration of  the  first  state,  and  the  legislation  of  the  second 
state  is  not  construed  as  amounting  to  incorporation.11 

So,  too,  where  the  second  state  recites  the  charter  grant- 
ed by  the  first  state,  and  goes  on  to  give  the  same  powers 
and  impose  the  same  duties,  that  is  construed  as  a  mere 
license,  and  not  as  creating  a  new  corporation.12 

»  Chapman  v.  Barney,  129  U.  S.  677,  9  Sup.  CL  426,  32  L.  Ed.  800 ; 
Roundtree  v.  Adams  Express  Co.,  165  Fed.  152,  91  C.  C.  A.  186 ;  Weir 
v.  Rountree,  216  U.  S.  607,  30  Sup.  Ct.  418,  54  L.  Ed,  635 ;  Irving  v. 
Joint  District  (C.  C.)  180  Fed.  896  (a  labor  union).  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  S15;  Cent.  Dig.  §  861. 

10  Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  177  U.  S.  449, 
20  Sup.  Ct.  690,  44  L.  Ed.  842 ;   H.  L.  Bruett  v.  Austin  Drainage  Ex. 
€o.  (C.  C.)  174  Fed.  668  (a  partnership).     See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  815;   Cent.  Dig.  §  861. 

11  ST.  LOUIS  &  S.  F.  R.  CO.  v.  JAMES,  161  U.  S.  545,  16  Sup.  Ct. 
621,  40  L.  Ed.  802 ;    Missouri  Pac.  R.  Co.  v.  Castle,  224  U.  S.  541,  32 
Sup.  Ct.  606,  56  L.  Ed.  875.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  314; 
Cent.  Dig.  §  860. 

12  Baltimore  &  O.  R.  Co.  v.  Harris,  12  Wall.  65,  20  L.  Ed.  354; 
Baltimore  &  O.  R.  Co.  v.  Koontz,  104  U.  S.  5,  26  L.  Ed.  643 ;   Atlantic 


252  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

In  order  for  the  legislation  of  the  second  state  to  con- 
stitute a  new  corporation  of  that  state,  the  language  used 
must  go  so  far  as  to  imply  actual  creation,  not  a  mere 
recognition  of  a  previous  creation.13 

On  the  other  hand,  when  the  intent  of  the  second  state 
to  create  a  new  corporation  is  clear,  the  effect  is,  in  con- 
templation of  law,  that  there  are  two  corporations.  There 
is,  first,  the  corporation  of  the  original  state,  which  owes 
its  existence  to  that  state,  and  cannot  be  regenerated  by 
another  state;  and  there  is,  second,  the  new  corporation  of 
the  second  state,  owing  its  existence  and  allegiance  to  the 
second  state.  These  two  corporations  may  in  name  be 
one,  may  have  the  same  stockholders,  own  the  same  prop- 
erty, and  even  be  operated  as  a  unit,  but  they  still  retain 
their  character  as  distinctive  and  separate  corporations.1* 

The  character  of  legislation  which  will  constitute  an 
additional  corporation  is  illustrated  by  Memphis  &  C.  R. 
Co.  v.  Alabama.15  In  this  case  a  railroad  had  already  been 
chartered  in  Tennessee,  but  by  an  act  of  the  Legislature 
of  Alabama  a  corporation  under  the  same  name  was  au- 
thorized to  take  subscriptions  to  capital  stock  in  Alabama, 
required  to  have  a  place  for  the  stockholders  to  meet  in 
Alabama,  and  to  do  various  other  things  consistent  only 
with  the  idea  of  its  being  an  Alabama  corporation.  When 
it  was  sued  in  Alabama  on  a  tax  question  arising  under  the 
laws  of  Alabama,  the  Supreme  Court  held  that  the  intent 
of  the  Legislature  of  Alabama  to  make  a  separate  corpora- 
Coast  Line  R.  Co.  v.  Dunning,  166  Fed.  850,  94  C.  C.  A.  128.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  §  860. 

is  Louisville,  N.  A.  &  C.  R.  Co.  v.  Louisville  Trust  Co.,  174  TJ.  S. 
552,  19  Sup.  Ct  817,  43  L.  Ed.  1081.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  314;  Cent.  Dig.  §  860. 

14  Ohio  &  M.  R.  Co.  v.  Wheeler,  1  Black,  286,  17  L.  Ed.  130.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  §  860. 

is  107  TJ.  S.  581,  2  Sup.  Ct.  432,  27  L.  Ed.  518.  See  "Corporations," 
Dec.  Dig.  (Key-No.)  §  52;  Cent.  Dig.  §§  140-150;  "Courts,"  Dec.  Dig. 
(Key-No.)  §  314;  Cent.  Dig.  §  860;  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §  27;  Cent.  Dig.  §§  64-68. 


§    101)  ORDINARY   CIVIL   JURISDICTION  253 

tion  was  clear,  and  that  as  to  such  a  procedure  it  must 
necessarily  be  considered  a  corporation  of  Alabama,  and 
could  not  remove  the  case  into  the  federal  courts  on  the 
ground  of  its  being  a  nonresident. 

Where  there  is  double  legislation  by  two  states,  though 
the  legislation  of  the  second  state  may  amount  to  incorpo- 
ration, the  original  corporation  organized  by  the  first  state 
still  remains.18 

Difficult  questions  under  this  branch  of  jurisdiction  arise 
when  corporations  of  different  states  are  consolidated.  In 
such  case  each  corporation,  as  a  rule,  retains  its  original 
citizenship,  and,  when  sued,  the  corporation  is  supposed 
to  be  a  corporation  of  the  state  where  it  was  sued,  and 
hence  could  not  be  sued  by  a  citizen  of  that  state.17  But 
when  a  new  corporation  is  organized,  and  the  old  corpora- 
tions, under  a  consolidation  agreement,  convey  their  prop- 
erties to  the  new  corporation  and  wind  up,  then  the  new 
corporation  is  treated  as  a  citizen  of  the  state  which  or- 
ganizes it.18 

When  a  corporation  acting  under  the  laws  of  two  states 
brings  a  suit,  the  question  as  to  its  citizenship  depends  on 
the  question  which  of  the  original  corporations  is  actually 
suing;  for  if,  in  contemplation  of  law,  there  are  still  two 
separate  corporations,  and  the  corporation  first  organized 
remains  a  corporation  of  the  original  state  and  loses  no 
rights  by  going  into  another  state,  then,  clearly,  in  such 
case,  it  may  be  the  original  corporation  which  is  suing, 

IB  Louisville,  N.  A.  &  C.  R.  Co.  v.  Trust  Co.,  174  U.  S.  552,  19  Sup. 
Ct.  817,  43  L.  Ed.  1081.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  31  4; 
Cent.  Dig.  §  860;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  27; 
Cent.  Dig.  §§  64-68. 

17  Baldwin  v.  Railroad  Co.  (C.  C.)  86  Fed.  167;  Smith  v.  New 
York,  N.  H.  &  H.  Railroad  Co.  (C.  C.)  96  Fed.  504.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  §  860;  "Removal  of  Causes" 
Dec.  Dig.  (Key-No.)  §  27;  Cent.  Dig.  §§  64-68. 

is  Westheider  v.  Railroad  Co.  (C.  C.)  115  Fed.  840.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  §  860;  "Removal  of  Causes" 
Dec.  Dig.  (Key-No.)  §  27;  Cent.  Dig. 


254  DISTRICT   COURT ORIGINAL  JURISDICTION        (Ch.  12 

and  not  the  corporation  of  the  second  state.  This  doctrine 
is  illustrated  by  comparing  the  two  cases  of  Ohio  &  M.  R. 
Co.  v.  Wheeler  19  and  Nashua  &  L.  R.  Corp.  v.  Boston  & 
L.  R.  Corp.20  In  the  first  a  corporation  describing  itself 
as  created  by  the  laws  of  the  states  of  Indiana  and  Ohio, 
and  having  its  principal  place  of  business  in  Ohio,  and  a 
citizen  of  Ohio,  sued  a  citizen  of  Indiana  in  the  Indiana 
federal  court.  The  Supreme  Court  held,  on  this  allegation 
of  the  pleadings,  that  it  was  not  a  single  corporation  un- 
der the  joint  laws  of  Ohio  and  Indiana,  but  that  there  were, 
in  contemplation  of  law,  two  separate  corporations,  one 
conclusively  presumed  to  be  composed  of  citizens  of  the 
state  of  Ohio,  and  the  other  conclusively  presumed  to  be 
composed  of  citizens  of  the  state  of  Indiana.  Hence  it  was 
the  same  as  if  a  citizen  of  Ohio  and  a  citizen  of  Indiana 
sued  a  citizen  of  Indiana  in  the  federal  courts,  and  thus, 
as  citizens  of  Indiana  were  on  two  different  sides  of  the 
controversy,  it  was  not  a  case  of  which  the  court  had  juris- 
diction. On  the  other  hand,  in  the  second  case,  the  Nash- 
ua Corporation,  alleging  itself  to  be  a  corporation  of  the 
state  of  New  Hampshire,  sued  a  corporation  of  the  state 
of  Massachusetts.  It  appeared  from  an  examination  of  the 
legislation  of  the  two  states  that  a  corporation  had  been 
chartered  by  the  state  of  New  Hampshire  composed  of 
seven  corporators,  and  subsequently  a  corporation  of  the 
same  name  by  the  state  of  Massachusetts  composed  of 
three  of  these  same  corporators,  and  that  by  subsequent 
legislation  the  stockholders  and  property  of  the  two  cor- 
porations were  blended  into  one  for  all  practical  operating 
purposes.  The  Supreme  Court  held,  however,  that  it  had 
to  consider  that  it  was  a  New  Hampshire  corporation 

i»  1  Black,  286,  17  L.  Ed.  130.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  S14;  Cent.  Dig.  §  860;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  § 
27;  Cent. 'Dig.  §§  64-68. 

20  136  U.  S.  356,  10  Sup.  Ct.  1004,  34  L.  Ed.  363.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  §  860;  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  27;  Cent.  Dig.  §§  64-68. 


§   102)  ORDINARY  CIVIL  JURISDICTION  255 

which  was  suing,  and  not  the  Massachusetts  corporation, 
and  hence  that  the  federal  court  for  the  district  of  Massa- 
chusetts had  jurisdiction. 


SAME— SAME— PLURALITY  OF  LITIGANTS 

102.  In  the  case  of  more  than  one  plaintiff  or  defendant, 
the  federal  jurisdiction  cannot  be  acquired  by  di- 
verse citizenship  when  any  one  or  more  of  the 
parties  on  either  side  is  a  citizen  of  the  same  state 
as  any  one  or  more  on  the  other  side;  but  only  a 
party  can  defeat  the  jurisdiction  who  is  an  indis- 
pensable party  to  the  suit,  and  the  omission  of 
parties  not  indispensable  is  authorized  by  statute 
and  court  rule  in  aid  of  the  federal  jurisdiction. 

Jurisdiction  as  Affected  by  the  Number  of  Litigants 

Heretofore  the  discussion  has  been  on  the  theory  that 
there  is  but  one  party  on  each  side  of  the  litigation.  A 
more  numerous  class  is  where  there  is  more  than  one  liti- 
gant on  each  side.  In  this  case  it  is  a  doctrine  of  the  fed- 
eral courts  that  the  terms  "plaintiff"  and  "defendant"  are 
used  collectively,  and  mean  that  all  the  plaintiffs  must  be 
capable  of  suing  all  the  defendants ;  that  is,  that  all  the  par- 
ties on  each  side  of  the  litigation  must  be  of  different  citi- 
zenship. Hence  a  citizen  of  New  York  and  a  citizen  of 
Massachusetts  cannot  sue  a  citizen  of  Massachusetts  in 
the  federal  courts,  as  that  would  not  be  a  controversy  be- 
tween citizens  of  different  states.21 

The  jurisdiction,  however,  depends  only  upon  those  who 
are  indispensable  as  parties,  and  in  order  to  obviate,  as 

21  Peninsular  Iron  Co.  v.  Stone,  121  TJ.  S.  631,  7  Sup.  Ct  1010,  30 
L.  Ed.  1030 ;  FLORIDA  CENT.  &  P.  R.  CO.  v.  BELL,  176  U.  S.  321, 
20  Sup.  Ct  399,  44  L.  Ed.  486 ;  Key  West  Cigar  Mfg.  Ass'n  v.  Rosen- 
bloom  (C.  C.)  171  Fed.  296.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  308, 
314;  Cent.  Dig.  §§  855,  856,  860. 


256  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

far  as  possible,  the  inconvenience  of  having  the  jurisdic- 
tion defeated,  section  50  of  the  Judicial  Code  reads  as  fol- 
lows: 

"When  there  are  several  defendants  in  any  suit  at  law 
or  in  equity,  and  one  or  more  of  them  are  neither  inhabi- 
tants of  nor  found  within  the  district  in  which  the  suit  is 
brought,  and  do  not  voluntarily  appear,  the  court  may  en- 
tertain jurisdiction,  and  proceed  to  the  trial  and  adjudica- 
tion of  the  suit  between  the  parties  who  are  properly  before 
it;  but  the  judgment  or  decree  rendered  therein  shall  not 
conclude  or  prejudice  other  parties  not  regularly  served 
with  process  nor  voluntarily  appearing  to  answer;  and 
nonjoinder  of  parties  who  are  not  inhabitants  of  nor  found 
within  the  district,  as  aforesaid,  shall  not  constitute  mat- 
ter of  abatement  or  objection  to  the  suit." 

This  authorizes  the  omission  of  parties  only  on  the 
ground  of  their  absence  from  the  jurisdiction  and  the  in- 
ability to  reach  them  with  process,  but  not  where  they 
are  necessary  parties  and  in  reach  of  process. 

For  instance,  in  Allnut  v.  Lancaster,22  there  were  114 
defendants,  all  in  reach  of  the  court's  process,  and  it  was 
held  that  in  such  case  it  was  necessary  to  make  them  par- 
ties. This  statute  applies  both  to  common  law  and  eq- 
uity, and  authorizes  the  omission  even  of  those  who  would, 
under  ordinary  rules  of  practice,  be  considered  as  necessary 
parties,  provided  the  decree,  when  rendered,  does  not  so 
change  the  state  of  affairs  as  to  injuriously  affect  the  in- 
terests of  the  absent  party.  Hence,  in  Clearwater  v.  Mere- 
dith,23 it  was  held  that  where  there  were  four  guarantors 
in  a  contract,  one  of  whom  was  out  of  the  jurisdiction,  the 
other  three  could  be  sued  and  the  absent  one  could  be  omit- 


22  (C.  C.)  76  Fed.  131.     See,  also,  Shearson  v.  Littleton  (C.  C.)  105 
Fed.  533;    Jackson  v.  Jackson,  175  Fed.  710,  99  C.  C.  A.  286.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  308-310;   Cent.  Dig.  §§  855-857. 

23  21  How.  489,  16  L.  Ed.  201.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§ 
308-310;   Cent.  Dig.  §§  855-857. 


§    102)  ORDINARY    CIVIL   JURISDICTION  257 

ted,  as  in  such  case  the  judgment  would  not  bind  him, 
and  he  would  still  be  free  to  defend  just  as  if  no  suit  had 
ever  been  brought  against  the  others.  So,  in  Inbusch  v. 
Farwell,24  a  suit  against  the  administrator  of  one  part- 
ner and  two  sureties  on  a  bond  signed  by  them,  and  also 
by  two  other  partners,  was  sustained,  the  other  partner 
being  inaccessible.  But  where  the  omitted  parties  are 
what  may  be  termed  indispensable  parties,  being  so  neces- 
sary that  a  decree  without  their  presence  would  prejudice 
their  rights  and  leave  the  case  in  a  shape  contrary  to  eq- 
uity and  good  conscience,  the  statute  does  not  apply,  and 
the  jurisdiction  of  the  court  would  not  attach.26 

In  addition  to  the  above  statute,  the  thirty-ninth  equity 
rule  provides  as  follows: 

"In  all  cases  where  it  shall  appear  to  the  court  that 
persons,  who  might  otherwise  be  deemed  proper  parties  to 
the  suit,  cannot  be  made  parties  by  reason  of  their  being 
out  of  the  jurisdiction  of  the  court,  or  incapable  otherwise 
of  being  made  parties,  or  because  their  joinder  would  oust 
the  jurisdiction  of  the  court  as  to  the  parties  before  the 
court,  the  court  may  in  its  discretion  proceed  in  the  cause 
without  making  such  persons  parties;  and  in  such  cases 
the  decree  shall  be  without  prejudice  to  the  rights  of  the 
absent  parties." 

This  rule,  however,  applies  only  to  equity  cases.  It  is 
broader  than  the  statute  above  quoted,  because  it  applies 
not  only  to  a  defect  of  parties,  due  to  their  being  out  of 
reach  of  process,  but  also  to  parties  within  the  reach  of 
process,  whose  joinder  would  oust  the  jurisdiction  of  the 
court.  Under  this  rule  and  the  above  statute,  parties  in 
the  federal  courts  need  not  be  so  numerous  as  in  the  or- 

24  1  Black,  566,  17  L.  Ed.  188.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§§  308-310;  Cent.  Dig.  §§  855-857. 

2  s  Barney  v.  Baltimore,  6  Wall.  280,  18  L.  Ed.  825;    Ober  v.  Gal- 
lagher, 93  U.  S.  199,  23  L.  Ed.  829;    Waterman  v.  Canal-Louisiana 
Bank  &  T.   Co.,  215  U.  S.  33,  30  Sup.  Ct.  10,  54  L.  Ed.   80.     See 
"Courts,"  Dec.  Dig.  (Key-Xo.)  §  310;   Cent.  Dig.  §  857. 
HUGHES  FED.PB.(2o  ED.) — 17 


258  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

dinary  chancery  courts,  and  many  who  would  ordinarily  be 
made  parties  are  not  necessarily  so  made  in  the  federal 
courts.  The  leading  case  on  this  subject  is  Shields  v.  Bar- 
row.26 This  case  classifies  parties  in  the  federal  courts  in- 
to formal,  necessary,  and  indispensable,  holding  that  only 
the  latter  class  are  the  ones  whose  absence  would  com- 
pletely defeat  the  jurisdiction.  Parties  who  are  ordinarily 
considered  necessary  parties  would  not  defeat  the  jurisdic- 
tion of  the  federal  court,  if  the  court  can  proceed  without 
prejudicing  their  rights  or  leaving  the  record  at  final  de- 
cree in  a  shape  contrary  to  equity  and  good  conscience. 

Substantially  the  same  rule  is  laid  down  in  Williams  v. 
Bankhead,27  where  the  court  says:  "The  general  rule  as 
to  parties  in  chancery  is,  that  all  ought  to  be  made  parties 
who  are  interested  in  the  controversy,  in  order  that  there 
may  be  an  end  of  litigation.  But  there  are  qualifications 
of  this  rule,  arising  out  of  public  policy  and  the  necessities 
of  particular  cases.  The  true  distinction  appears  to  be 
as  follows:  First.  Where  a  person  will  be  directly  affect- 
ed by  a  decree,  he  is  an  indispensable  party,  unless  the  par- 
ties are  too  numerous  to  be  brought  before  the  court,  when 
the  case  is  subject  to  a  special  rule.  Secondly.  Where 
a  person  is  interested  in  the  controversy,  but  will  not  be 
directly  affected  by  a  decree  made  in  his  absence,  he  is  not 
an  indispensable  party,  but  he  should  be  made  a  party  if 
possible,  and  the  court  will  not  proceed  to  a  decree  with- 
out him  if  he  can  be  reached.  Thirdly.  Where  he  is  not 
interested  in  the  controversy  between  the  immediate  liti- 
gants, but  has  an  interest  in  the  subject-matter  which  may 


se  17  How.  130,  15  L.  Ed.  158;  Federal  Mining  &  Smelting  Co.  v. 
Bunker  Hill  &  S.  M.  Co.  (C.  C.)  187  Fed.  474.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  808-310;  Cent.  Dig.  §§  855-857. 

2719  Wall.  563,  22  L.  Ed.  184.  See,  also,  Minnesota  v.  Securities 
Co.,  184  U.  S.  199,  22  Sup.  Ct.  308,  46  L.  Ed.  499 ;  Kuchler  v.  Greene 
(C.  C.)  163  Fed.  91 ;  South  Penn  Oil  Co.  v.  Miller,  175  Fed.  729,  99 
C.  C.  A.  305.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  308-310;  Cent. 
Dig.  §§  855-857. 


§    102)  ORDINARY    CIVIL   JURISDICTION  259 

be  conveniently  settled  in  the  suit  and  thereby  prevent 
further  litigation,  he  may  be  a  party,  or  not,  at  the  option 
of  the  complainant." 

An  illustration  of  parties  who  are  merely  formal  in  the 
sense  of  this  statute  and  rule  is  given  by  Walden  v.  Skin- 
ner.28 In  this  'case  the  executors  of  a  trustee,  who  were 
joined  for  the  mere  purpose  of  conveying  a  title,  but 
against  whom  no  personal  relief  was  prayed,  were  held  to 
be  merely  formal. 

So,  too,  in  Einstein  v.  Georgia  Southern  &  F.  R.  Co.,29 
where  two  of  three  trustees  sued  as  plaintiffs,  and  another 
refused  to  join  and  was  therefore  made  defendant,  he  was 
held  to  be  only  a  formal  party.  An  ordinary  trustee,  un- 
less the  instrument  creating  him  is  very  restricted  in  con- 
ferring powers  upon  him,  represents  the  beneficiaries,  and 
therefore  the  latter  are  not  necessary  parties.30 

When  a  trustee  is  made  a  party  defendant  and  no  re- 
lief is  prayed  against  him,  he  would  not  defeat  the  juris- 
diction; but  where  there  are  charges  against  him,  and 
therefore  relief  is  prayed,  he  is  a  necessary  party,  and 
would  defeat  the  jurisdiction  if  it  places  two  citizens  of 
the  same  state  on  opposite  sides.31  There  are,  however, 
many  cases  where  parties  have  been  held  indispensable  and 
their  joinder  defeats  the  jurisdiction  on  that  account.  In 
Williams  v.  Bankhead  32  the  claimant  of  a  fund  was  held 


28  101  U.  S.  577,  25  L.  Ed.  963.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  309;  Cent.  Dig.  §  857. 

2»  (C.  C.)  120  Fed.  1008.  See  Atchison,  T.  &  S.  F.  R.  Co.  v.  Phillips, 
176  Fed.  663,  100  C.  C.  A.  215.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§ 
808-310;  Cent.  Dig.  §§  855-857. 

so  Kerrison  v.  Stewart,  93  U.  S.  155,  23  L.  Ed.  843;  Dodge  v.  Tul- 
leys,  144  U.  S.  451,  12  Sup.  Ct.  728,  36  L.  Ed.  501 ;  Allen-West  Com- 
mission Co.  v.  Brashear  (C.  C.)  176  Fed.  119.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §§  308-310;  Cent.  Dig.  §§  855-857. 

si  Post  v.  Buckley  (C.  C.)  119  Fed.  249.  See  "Courts,"  Dec.  Dig. 
(Kci/-No.)  §§  308-310;  Cent.  Dig.  §§  855-857. 

32  19  Wall.  563,  22  L.  Ed.  184.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§ 
308-310;  Cent.  Dig.  §§  855-857. 


260  DISTRICT    COURT ORIGINAL   JURISDICTION        (Ch.  12 

to  be  a  necessary  party.  So  in  Massachusetts  &  S.  Const. 
Co.  v.  Cane  Creek  Tp.,  which  was  a  suit  to  recover  bonds  in 
the  possession  of  a  third  party,  raising  certain  questions 
as  to  the  contract  under  which  they  were  placed  with  that 
party,  it  was  held  that  the  custodian  of  the  bonds,  though 
only  a  stakeholder,  was  an  indispensable  party.33 

In  many  cases  a  jurisdiction  may  be  given  by  dismissing 
the  suit  as  to  parties  who  would  otherwise  defeat  it.34 

In  deciding  upon  the  jurisdiction,  the  court  does  not  con- 
sider itself  bound  by  the  arrangement  which  the  pleader 
has  chosen  to  give  the  parties  on  the  record.  It  will  ar- 
range them  according  to  their  actual  interest,  and  then 
decide  whether  the  jurisdiction  can  be  sustained.35 


SAME— CONTROVERSIES   BETWEEN   CITIZENS 

OF  A  STATE  AND  FOREIGN  STATES, 

CITIZENS,  OR  SUBJECTS 

103.  In  civil  suits  involving  over  $3,000,  the  federal  juris- 
diction extends  to  controversies  between  citizens 
of  a  state  and  foreign  states,  citizens,  or  subjects. 

«« 155  U.  S.  283,  15  Sup.  Ct.  91,  39  L.  Ed.  152;  New  Orleans  Wa- 
terworks Co.  v.  New  Orleans,  164  U.  S.  471,  17  Sup.  Ct.  161,  41  L. 
Ed.  518.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  308-310;  Cent.  Dig.  §§ 
£55-857. 

3  *  Horn  v.  Lockhart,  17  Wall.  570,  21  L.  Ed.  657;  Mason  v.  Dul- 
lagharn,  82  Fed.  689,  27  C.  C.  A.  296;  Hopkins  v.  Stave  Co.,  83  Fed. 
912,  28  C.  C.  A.  99;  Delaware,  L.  &  W.  R.  Co.  v.  Frank  (C.  C.)  110 
Fed.  689 ;  Ladew  v.  Tennessee  Copper  Co.  (C.  C.)  175  Fed.  245 ;  Id., 
218  U.  S.  357,  31  Sup.  Ct.  81,  54  L.  Ed.  1069;  Id.,  218  U.  S.  369.  31 
Sup.  Ct.  84,  54  L.  Ed.  1073.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  318; 
Cent.  Dig.  §  863. 

35  First  Nat.  Bank  v.  Trust  Co.,  80  Fed.  569,  26  C.  C.  A.  1;  John- 
son v.  Ford  (C.  C.)  109  Fed.  501;  Joseph  Dry  Goods  Co.  v.  Hecht, 
120  Fed.  760,  57  C.  C.  A.  64 ;  Kelly  v.  Mississippi  Valley  Coaling  Co. 
(C.  C.)  175  Fed.  482 ;  Helm  v.  Zarecor,  222  U.  S.  32.  32  Sup.  Ct  10, 
56  L.  Ed.  77.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  317. 


§    103)  ORDINARY   CIVIL   JURISDICTION  261 

A  foreign  state  may  sue  in  the  courts  of  another  coun- 
try, and  it  would  be  a  breach  of  international  courtesy  not 
to  allow  it  so  to  do.36 

An  illustration  of  a  suit  by  a  foreign  state  is  given  in  the 
case  of  Republic  of  Colorrtbia  v.  Cauca  Co.,37  which  was 
a  suit  by  the  republic  of  Colombia  to  set  aside  an  award  of 
arbitrators. 

Citizens  or  subjects  of  foreign  states  are  usually  desig- 
nated in  the  case  as  aliens,  although  that  is  not  the  lan- 
guage of  the  statute.  The  court  has  jurisdiction  of  a  suit 
under  this  clause,  although  the  alien  sued  or  suing  resides 
in  the  United  States,38  and  though  the  plaintiff  is  not  a 
citizen  of  the  state  where  suit  is  brought.39 

For  the  purposes  of  jurisdiction  under  this  clause,  a 
foreigner  remains  an  alien  until  he  is  completely  natural- 
ized. He  does  not  become  a  citizen  by  taking  out  his  pre- 
liminary naturalization  papers,  though  the  state  laws  give 
such  a  party  the  right  to  vote.40 

On  the  other  hand,  a  citizen  of  the  United  States  does 
not  become  an  alien,  by  a  mere  change  of  residence  from 
the  United  States.  It  must  appear  that  the  change  is  per- 
manent, and  that  an  obligation  to  the  new  sovereign  has 
been  distinctly  assumed.41 

ae  The  Sapphire  v.  Napoleon  III,  11  Wall.  164,  20  L.  Ed.  127.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  321;  Cent.  Dig.  §§  847-849. 

ST  (C.  C.)  106  Fed.  337;  Republic  of  Columbia  v.  Cauca  Co.,  113 
Fed.  1020,  51  C.  C.  A.  604;  Id.,  190  U.  S.  524,  23  Sup.  Ct.  704,  47 
L.  Ed.  1159.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  321;  Cent.  Dig. 
§§  841-849. 

ss  Breedlove  v.  Nicolet,  7  Pet  413,  8  L.  Ed.  731.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  821;  Cent.  Dig.  §§  847-849. 

ss  BARROW  S.  S.  CO.  v.  KANE,  170  U.  S.  100,  18  Sup.  Ct.  526, 
42  L.  Ed.  964.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  321;  Cent.  Dig. 
§§  847-849. 

40  City  of  Minneapolis  v.  Reum,  56  Fed.  576,  6  C.  C.  A.  31;    Frick 
v.  Lewis,  195  Fed.  693,  697,  115  C.  C.  A.  493.    See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  321;   Cent.  Dig.  §§  847-849. 

41  Bishop  v.  Averill  (C.  C.)  76  Fed.  386;   Winans  v.  Attorney  Gen- 
eral [1904]  App.  Gas.  287.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  321; 
Cent.  Dig.  §§  847-849. 


262  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

If,  however,  a  female  citizen  of  the  United  States  marries 
a  Canadian  and  goes  with  him  to  his  permanent  home,  her 
national  character  is  determined  by  her  husband's  resi- 
dence, and  she  becomes  a  subject  of  Great  Britain.42  On 
the  other  hand,  independent  of  statute,  a  female  citizen  of 
the  United  States,  by  marrying  a  resident  unnaturalized 
alien,  does  not  thereby  become  an  alien  herself,  they  con- 
tinuing to  reside  in  the  United  States.43 

A  citizen  of  Cuba  after  the  Spanish  War  is  a  citizen  of 
a  foreign  state,  notwithstanding  the  close  relations  be- 
tween that  country  and  the  United  States.  She  is  Cuba 
Libre.44 

In  view  of  the  constant  practice  of  nations  to  appoint 
citizens  of  other  nations  as  consuls,  there  is  no  presump- 
tion that  a  person  so  appointed  by  a  foreign  country  is  an 
alien.45 

This  clause  of  the  statute  gives  jurisdiction  simply  be- 
tween citizens  of  this  country  and  foreign  states,  citizens, 
or  subjects.  Hence  it  does  not  confer  jurisdiction  in  con- 
troversies between  citizens  of  two  foreign  states,46  nor  in 

• 

42  Jenns  v.  Landes  (C.  C.)  85  Fed.  801.  See  "Citizens,"  Dec.  Dig. 
(Key-No.)  §  8;  Cent.  Dig.  §  7;  "Courts,"  Dec.  Dig.  (Key-No.)  §  321; 
Cent.  Dig.  §§  847-849. 

43Comitis  v.  Parkerson  (C.  C.)  56  Fed.  556,  22  L.  R.  A.  148;  Wal- 
lenburg  v.  Missouri  P.  R.  Co.  (C.  C.)  159  Fed.  217.  These  cases  arose 
before  the  expatriation  act  of  March  2,  1907  (34  Stat.  1228,  c.  2534, 
[U.  S.  Comp.  St.  Supp.  1911,  p.  490]).  This  act  was  entitled  "An  act 
in  reference  to  the  expatriation  of  citizens  and  their  protection 
abroad,"  and  its  third  section  provided  that  any  American  woman 
who  marries  a  foreigner  should  take  the  nationality  of  her  husband, 
but  could  resume  her  American  citizenship  at  the  termination  of 
the  marital  relation.  See  In  re  Martorana  (D.  C.)  159  Fed.  1010,  171 
Fed.  397.  See  "Citizens,"  Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig.  §  7; 
"Courts,"  Dec.  Dig.  (Key-No.)  §  321;  Cent.  Dig.  §§  847-849. 

44  Betancourt  v.  Association  (C.  C.)  101  Fed.  305.     See  "Courts," 
Dec.  Dig.  (Key-No.)  §  321;   Cent.  Dig.  §§  847-849. 

45  Bors  v.  Preston,  111  U.  S.  252,  4  Sup.  Ct.  407,  28  L.  Ed.  419.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  SO  1;   Cent.  Dig.  §§  842,  885. 

46  Pooley  v.  Luco  (C.  C.)  72  Fed.  561;   Gage  v.  Riverside  Trust  Co. 
(C.  C.)  156  Fed.  1002.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  321;  Cent. 
Dig.  §§  847-849. 


§    103)  ORDINARY    CIVIL   JURISDICTION  263 

controversies  between  citizens  of  foreign  states  and  citi- 
zens of  the  District  of  Columbia,  as  the  latter  is  not  a 
state.47 

Pleadings  must  Show  the  Jurisdiction 

The  courts  hold  that  an  averment  must  clearly  show 
that  an  alien  is  a  citizen  of  a  foreign  power.  In  Stuart  v. 
City  of  Easton  48  the  Supreme  Court  held  that  an  aver- 
ment that  a  party  on  whom  jurisdiction  depended  was  a 
citizen  of  London,  England,  was  not  sufficient  for  the  pur- 
pose of  jurisdiction.  The  opinion  is  very  short,  and  it  is 
not  entirely  clear  wherein  the  defect  consists.  Probably  it 
was  that  the  averment  simply  showed  citizenship  of  the 
city  of  London,  but  did  not  show  necessarily  that  the  par- 
ty was  a  citizen  or  subject  of  Great  Britain.  Soon  after 
this  decision  Judge  Taft,  speaking  for  the  circuit  court  of 
appeals,  held,  in  Rondot  v.  Rogers  Tp.,49  that  the  proper 
averment  should  allege  not  only  that  the  party  was  a 
subject,  but  also  expressly  that  he  was  an  alien,  although, 
as  above  stated,  the  word  "alien"  is  not  used  in  the  stat- 
ute at  all.  But  in  the  later  case  of  Hennessy  v.  Richard- 
son  Drug  Co.60  the  Supreme  Court  held  that  it  was  not 
necessary  to  expressly  aver  the  alienage,  and  that  an  aver- 
ment that  the  complainants  were  "all  of  Cognac  in  France, 

47  Land  Co.  of  New  Mexico  v.  Elkins  (C.  O.)  20  Fed.   545.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  821;    Cent.  Dig.  §§  847-849. 

48  156  U.  S.  46,  15  Sup.  Ct.  268,  39  L.  Ed.  341.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  322;   Cent.  Dig.  §§  876-881. 

49  79  Fed.  676,  25  C.  C.  A.  145.    But  in  Mahoning  Valley  R.  Co.  v. 
O'Hara,  196  Fed.  945,  116  C.  C.  A.  495,  this  same  court  on  the  au- 
thority of  the  decisions  referred  to  in  the  next  note  held  an  allega- 
tion that  the  plaintiff  was  "a  citizen  of  Ireland"  sufficient.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  322;  Cent.  Dig.  §§  876-881. 

so  189  U.  S.  25,  23  Sup.  Ct.  532,  47  L.  Ed.  697.  In  C.  H.  Nichols 
Lumber  Co.  v.  Franson,  203  U.  S.  278,  27  Sup.  Ct.  102,  51  L.  Ed.  181, 
the  allegation  "a  citizen  of  Sweden"  was  held  sufficient  In  fact,  the 
word  "citizen"  in  reference  to  an  alien  is  practically  the  equivalent 
of  "subject."  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  322;  Cent.  Dig.  §§ 
876-881. 


264  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

and  citizens  of  the  republic  of  France,"  was  sufficient  for 
the  purposes  of  jurisdiction. 


SAME— VENUE  OF  ACTIONS 

104.  Civil  suits  in  the  federal  courts  are  to  be  brought  in 
the  judicial  district  whereof  the  defendant  is  an 
inhabitant,  except  that,  where  the  jurisdiction  is 
founded  only  on  the  fact  that  the  action  is  be- 
tween citizens  of  different  states,  suit  may  be 
brought  in  the  district  of  the  residence  of  the 
plaintiff,  if  the  defendant  be  found  therein  and 
served  with  process.  This  exemption  from  suit, 
however,  being  of  the  person  and  not  of  the  sub- 
ject-matter, any  defects  are  waived  by  the  appear- 
ance of  the  defendant. 

Jurisdiction  as  A  ffected  by  Place  of  Suit 
Section  51  of  the  Judicial  Code  provides: 
"Except  as  provided  in  the  five  succeeding  sections,  no 
person  shall  be  arrested  in  one  district  for  trial  in  an- 
other, in  any  civil  action  before  a  district  court;  and,  ex- 
cept as  provided  in  the  six  succeeding  sections,  no  civil 
suit  shall  be  brought  in  any  district  court  against  any  per- 
son by  any  original  process  or  proceeding  in  any  other  dis- 
trict than  that  whereof  he  is  an  inhabitant;  but  where  the 
jurisdiction  is  founded  only  on  the  fact  that  the  action  is 
between  citizens  of  different  states,  suit  shall  be  brought 
only  in  the  district  of  the  residence  of  either  the  plaintiff 
or  the  defendant." 

This  adopted  the  policy  of  the  act  of  March  3,  1887,  as 
corrected  August  13,  1888.  Prior  thereto,  the  acts  pro- 
vided that  suit  should  not  be  brought  "in  any  other  dis- 
trict than  that  whereof  he  is  an  inhabitant,  or  in  which  he 
shall  be  found  at  the  time  of  serving  the  writ."  This 
change,  by  omitting  the  right  to  sue  in  the  district  where 


§    104)  ORDINARY   CIVIL   JURISDICTION  265 

a  defendant  may  be  found,  renders  many  of  the  older  de- 
cisions obsolete. 

In  cases  arising  before  the  Judicial  Code  took  effect,  it 
was  held  51  that  under  the  provisions  of  the  Sherman  anti- 
trust act  of  July  2,  1890,52  allowing  suits  where  the  defend- 
ant resides  or  is  found,  suits  can  be  brought  in  districts 
where  the  defendant  is  not  an  inhabitant.  The  language  of 
the  Judicial  Code  is  probably  to  be  construed  in  the  same 
way,  as  its  repealing  clause  does  not  specifically  mention 
this  act. 

On  the  other  hand,  a  suit  by  resident  shippers  to  re- 
strain carriers  (none  of  whom  reside  in  the  district  where 
suit  is  brought)  from  advancing  freight  rates  cannot  be 
sustained.53 

In  considering  this  question  as  to  the  place  of  suit,  it 
must  first  be  observed  that  the  requirement  does  not  go 
to  jurisdiction  over  the  subject-matter,  but  merely  to  ju- 
risdiction over  the  person,  and  hence  may  be  waived.  If 
the  controversy  is  between  citizens  of  different  states,  or 
involves  a  federal  question,  or  comes  within  any  other  of 
the  provisos  defining  the  jurisdiction  over  the  subject- 
matter,  the  courts  have  jurisdiction  of  that  subject-matter, 
though  suit  may  be  brought  in  a  district  where  neither  the 
plaintiff  nor  the  defendant  resides;  and  in  such  cases  a 
general  appearance  is  a  waiver  of  the  right  to  object  to 
jurisdiction  over  the  person.  Under  the  ordinary  rules  of 
pleading,  a  special  appearance  and  a  general  appearance 
cannot  be  combined,  but  the  latter  is  a  waiver  of  the  for- 
mer; and  hence  a  demurrer  which  sets  up  as  a  ground,  not 


si  Standard  Oil  Co.  v.  U.  S.,  221  U.  S.  1,  31  Sup.  Ct.  502,  55  L.  Ed. 
619,  34  L.  R.  A.  (N.  .S.)  834,  Ann.  Cas.  1912D,  734 ;  Michigan  Alumi- 
num F.  Co.  v.  Aluminum  Castings  Co.  (C.  C.)  190  Fed.  879.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  271;  Cent.  Dig.  §  810. 

52  26  Stat.  209,  c.  647  (U.  S.  Comp.  St.  1901,  p.  3200). 

53  Macon  Grocery  Co.  v.  Atlantic  Coast  Line  R.  Co.,  215  U.  S.  501, 
30  Sup.  Ct.  184,  54  L.~Ed.  300.    See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
272;    Cent.  Dig.  §  811. 


266  DISTRICT    COURT ORIGINAL   JURISDICTION        (Ch.  12 

only  the  exemption  from  suit  in  that  special  district,  but 
other  grounds  going  to  the  merits,  such  as  want  of  equity, 
is  treated  as  a  general  appearance,  and  suit  may  be  main- 
tained.54 Any  appearance,  consent,  or  plea  which  amounts 
to  a  general  appearance  is  a  waiver  of  the  question  of  ju- 
risdiction.55 

It  is  not  a  waiver  of  the  jurisdictional  privilege,  or  a  con- 
sent to  be  sued  in  a  certain  district,  for  a  defendant  cor- 
poration to  appoint  an  agent  on  whom  process  may  be 
served,  as  required  by  state  statute.  Though  the  corpora- 
tion actually  does  business  there,  this  does  not  give  the 
right  to  sue  it,  so  far  as  the  jurisdiction  depends  upon  the 
residence  of  the  defendant.56 

As  this  is  a  personal  privilege,  only  the  party  can  plead 
it  whose  residence  does  not  come  within  its  requirements.57 

This  qualification  upon  the  right  to  sue  must  be  consid- 
ered, first,  in  controversies  not  dependent  upon  diverse 
citizenship,  and,  second,  in  controversies  where  the  ground 
of  jurisdiction  is  diverse  citizenship. 


s*  Jones  v.  Andrews,  10  Wall.  327,  19  L.  Ed.  935;  Southern  Pac. 
Co.  v.  Denton,  146  TJ.  S.  202,  13  Sup.  Ct.  44,  36  L.  Ed.  942 ;  Blueflelds 
S.  S.  Co.  v.  State,  184  Fed.  584,  106  C.  C.  A.  564 ;  Campbell  v.  John- 
son, 167  Fed.  102,  92  C.  C.  A.  554.  It  is  difficult  to  reconcile  Southern 
Pac.  Co.  v.  Arlington  Heights  Co.,  191  Fed.  101,  111  C.  C.  A.  581, 
with  these  authorities,  especially  with  Jones  v.  Andrews.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  276;  Cent.  Dig.  §  815;  "Appear- 
ance," Cent.  Dig.  §  HJf. 

55  ST.  LOUIS  &  S.  F.  R.  CO.  v.  McBRIDE,  141  TJ.  S.  127,  11  Sup. 
Ct.  982,  35  L.  Ed.  659 ;  Ingersoll  v.  Coram,  211  U.  S.  335,  29  Sup.  Ct. 
92,  53  L.  Ed.  208;  Texas  Co.  v.  Central  Fuel  Co.,  194  Fed.  1,  114 
C.  C.  A.  21 ;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Gilliland,  193  Fed.  608, 
113  C.  C.  A.  476.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  276;  Cent. 
Dig.  §  815;  "Appearance,"  Cent.  Dig.  §  114. 

se  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct.  44,  36  L. 
Ed.  942;  Hagstoz  v.  Mutual  L.  I.  Co.  (C.  C.)  179  Fed.  569.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  276;  Cent.  Dig.  §  815. 

57  Central  Trust  Co.  v.  McGeorge,  151  U.  S.  129,  14  Sup.  Ct.  286,  38 
L.  Ed.  98 ;  Horn  v.  Pere  Marquette  R.  Co.  (C.  C.)  151  Fed.  626.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  276;  Cent.  Dig.  §  815. 


§    104)  ORDINARY   CIVIL   JURISDICTION  267 

Rule  When  Jurisdiction  Not  Dependent  on  Diverse  Citizenship 

In  this  case  the  residence  or  inhabitancy  of  the  defend- 
ant alone  confers  jurisdiction.58  It  is  plain  from  the  lan- 
guage 6f  the  act  that  it  was  intended  to  refer  only  to  the 
residence  of  citizens  of  the  United  States,  and  hence  it  does 
not  apply  to  an  alien  defendant.  If  service  can  be  ob- 
tained on  an  alien  corporation,  and  the  other  requisites  of 
jurisdiction  concur,  the  court  can  take  jurisdiction,  though 
the  corporation  merely  does  business  at  the  place  where 
sued,  and  does  not,  as  in  the  nature  of  things  it  cannot, 
reside  there  or  become  an  inhabitant.59 

On  the  other  hand,  when  an  alien  is  a  plaintiff,  then  the 
jurisdiction  is  necessarily  governed  by  the  district  of  the 
defendant  American  citizen  or  corporation.60 

As  to  the  meaning  of  the  term  "resident  or  inhabitant," 
the  Supreme  Court  has  settled  that.  As  there  were  many 
states  which  had  more  than  one  district,  and  it  would  be 
incongruous  to  say  that  a  litigant  was  a  citizen  of  a  dis- 
trict, the  two  words  are  practically  synonymous,  and  mean 
the  regular  home  or  domicile  of  the  party  in  question.61 

A  comparatively  recent  act  of  Congress  requires  surety 
companies  to  file  a  power  of  attorney  in  any  district  where 


as  in  re  Keasbey  &  Mattison  Co.,  160  U.  S.  221,  16  Sup.  Ct.  273, 
40  L.  Ed.  402 ;  Cound  v.  Atchison,  T.  &  S.  F.  R.  Co.  (C.  C.)  173  Fed. 
527;  Smith  v.  Detroit  &  T.  S.  L.  R.  Co.  (C.  C.)  175  Fed.  506.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  270;  Cent.  Dig.  §  810. 

59  BARROW  S.  S.  CO.  v.  KANE,  170  U.  S.  100,  18  Sup.  Ct.  526, 
42  L.  Ed.  964;  Tierney  v.  Helvetia  Swiss  F.  I.  Co.  (C.  C.)  163  Fed. 
82.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  270,  274;  Cent.  Dig.  §§  810, 
814. 

eo  Galveston,  H.  &  S.  A.  R.  Co.  v.  Gonzales,  151  U.  S.  496,  14  Sup. 
Ct  401,  38  L.  Ed.  248.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  270,  274; 
Cent.  Dig.  §§  810,  814. 

6i  Shaw  v.  Mining  Co.,  145  U.  S.  444,  12  Sup.  Ct.  935,  36  L.  Ed. 
768 ;  Galveston,  H.  &  S.  A.  R.  Co.  v.  Gonzales,  151  U.  S.  496,  14  Sup. 
Ct  401,  38  L.  Ed.  248 ;  In  re  Keasbey  &  Mattison  Co.,  160  U.  S.  221, 
16  Sup.  Ct  273,  40  L.  Ed.  402;  Freeman  v.  Surety  Co.  (C.  C.)  116 
Ped.  548.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  270;  Cent.  Dig.  §  810. 


268  DISTRICT    COURT ORIGINAL   JURISDICTION        (Ch.  12 

they  give  a  bond,  before  they  can  give  bonds  to  the  United 
States  or  in  the  United  States  courts.6' 

The  fifth  section  of  this  act  authorized  suits  where  the 
bond  was  given.  On  the  same  day  (August  13,  1894)  an 
act  was  passed  for  the  protection  of  supply  men  in  erecting 
public  works,63  which  was  amended  February  24, '  1905,6* 
by  requiring  suit  in  such  case  where  the  contract  with  the 
United  States  was  to  be  performed  and  not  elsewhere. 

Under  section  6  of  the  employer's  liability  act  'as  amend- 
ed April  5,  1910,  suit  may  be  brought  in  the  district  of  the 
residence  of  the  defendant,  or  in  which  the  cause  of  action 
arose,  or  in  which  the  defendant  shall  be  doing  business  at 
the  time  of  commencing  such  action.65 

When  Jurisdiction  Dependent  on  Diverse  Citizenship 

In  this  case  the  suit  may  be  either  in  the  district  of  the 
residence  of  the  plaintiff  or  of  the  defendant.  It  cannot, 
however,  be  in  the  residence  of  the  plaintiff  unless  legal 
service  can  be  secured  on  the  defendant.66  And,  in  the 
case  of  a  corporation,  legal  service  cannot  be  obtained  up- 
on it,  if  it  does  not  carry  on  business  in  a  district,  by  mere- 
ly serving  one  of  its  officers  who  happens  to  be  a  resident 
there.67  Hence,  as  to  nonresident  defendants,  they  can  be 

62  28  Stat.  279  (U.  S.  Comp.  St.  1901,  p.  2315). 

es  28  Stat.  278,  c.  280  (U.  S.  Comp.  St.  1901,  p.  2523). 

e*  33  Stat.  811,  c.  778  (U.  S.  Comp.  St  Supp.  1911,  p.  1071);  David- 
son Bros.  Marble  Co.  v.  U.  S.,  213  U.  S.  10,  29  Sup.  Ct.  324,  53  L. 
Ed.  675;  U.  S.  v.  Congress  Construction  Co.,  222  U.  S.  199,  32  Sup. 
Ct  44,  56  L.  Ed.  163.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  269,  270; 
Cent.  Dig.  §§  809,  810. 

es  Act  April  22,  1908,  c.  149,  35  Stat.  65,  as  amended  by  Act  April 
5,  1910,  c.  143,  36  Stat.  291  (U.  S.  Comp.  St.  Supp.  1911,  p.  1324); 
Newell  v.  Baltimore  &  O.  R.  Co.  (C.  C.)  181  Fed.  698.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §§  269,  210;  Cent.  Dig.  §§  809,  810. 

e  e  Barnes  v.  Telegraph  Co.  (C.  C.)  120  Fed.  550;  Kibbler  v.  St 
Louis  &  S.  F.  R.  Co.  (C.  C.)  147  Fed.  879 ;  Bruner  v.  Kansas  Moline 
Plow  Co.,  168  Fed.  218,  93  C.  C.  A.  504 ;  Green  v.  Chicago  B.  &  Q. 
R.  Co.,  205  U.  S.  530,  27  Sup.  Ct.  595,  51  L.  Ed.  916.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §§  272,  273;  Cent.  Dig.  §§  811,  813. 

67  Conley  v.  Mathieson  Alkali  Works,  190  U.  S.  406,  23  Sup.  Ct. 
728,  47  L.  Ed.  1113 ;  Cody  Motors  Co.  v.  Warren  Motor  Car  Co.  (D. 


§    105)  ORDINARY    CIVIL   JURISDICTION  269 

sued  in  the  district  of  the  plaintiff;  but  they  cannot  be 
sued  in  a  district  where  neither  plaintiff  nor  defendant  re- 
sides, though  they  carry  on  business  there,  and  though  a 
federal  question  or  other  requisite  of  general  jurisdiction 
may  exist;  but  this  exemption  from  suit  may  be  waived.68 


SAME— SAME— RULE  WHEN  LITIGANTS  ARE 
NUMEROUS 

105.  When  the  plaintiffs  or  defendants  are  numerous,  all 
the  plaintiffs  must  be  residents  of  the  district 
where  the  suit  is  brought,  if  the  jurisdiction  is 
based  upon  the  residence  of  the  plaintiff;  or  all 
the  defendants  must  be  residents  of  the  district 
where  the  suit  is  brought,  if  the  right  to  sue  is 
based  upon  the  residence  of  the  defendants;  but 
no  party  not  indispensable  defeats  the  jurisdiction. 

Following  analogies  laid  down  in  the  cases  regulating 
the  general  question  of  jurisdiction  between  citizens  of  dif- 
ferent states,  it  is  settled  that,  when  the  plaintiffs  or  de- 
fendants are  numerous,  all  the  plaintiffs  must  be  residents 
of  the  district  where  the  suit  is  brought,  if  the  jurisdiction 
is  based  upon  the  residence  of  the  plaintiffs;  or  all  the 
defendants  must  be  residents  of  the  district  where  the 
suit  is  brought,  if  the  right  to  sue  is  based  upon  the  resi- 
dence of  the  defendants.69 

Following  the  decisions  on  the  same  general  subject  of 
jurisdiction,  this  principle  applies  only  to  those  who  are 

C.)  196  Fed.  254.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  274;  Cent.  Dig. 
1814. 

ss  H.  J.  Decker,  Jr.,  &  Co.  v.  Southern  R.  Co.  (C.  C.)  189  Fed.  224. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  276;  Cent.  Dig.  §  815. 

8»  SMITH  v.  LYON,  133  U.  S.  315,  10  Sup.  Ct.  303,  33  L.  Ed.  635; 
Freeman  v.  Surety  Co.  (C.  C.)  116  Fed.  548;  McAulay  v.  Moody  (C. 
C.)  185  Fed.  ]44.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  273;  Cent.  Dig. 
§  813. 


270  DISTRICT   COURT ORIGINAL  JURISDICTION        (Ch.  12 

indispensable  parties;  and  even  after  suit  brought,  juris- 
diction could  be  sustained  by  dismissing  as  to  any  parties 
who  are  not  indispensable  and  who  otherwise  might  de- 
feat jurisdiction.70 

This  provision  as  to  the  place  where  suit  must  be 
brought  is  used  in  the  statute  merely  in  reference  to  the  or- 
dinary civil  jurisdiction  of  the  district  courts,  and  hence 
does  not  apply  to  other  special  classes  of  jurisdiction.  A 
libel  in  personam  in  the  district  court  in  admiralty  may  be 
maintained  in  a  district  other  than  the  residence  of  the 
defendant,  and  the  ancient  process  of  the  admiralty,  courts 
may  be  resorted  to  in  order  to  bring  the  defendant  into 
court.71 


SAME— SAME— SUITS    AGAINST    DEFENDANTS 

OF  DIFFERENT  DISTRICTS  IN  SAME 

STATE,  AND  SUITS  IN  REM 

106.  In  suits  not  of  a  local  nature,  when  there  are  two  or 
more  defendants  in  different  districts  of  the  same 
state,  the  suit  may  be  brought  in  any  district  in 
which  any  defendant  resides,  and  process  will  run 
into  the  other  districts  for  the  purpose  of  reaching 
any  defendant  in  the  district  in  which  he  resides. 
Similar  provision  is  made  as  among  the  different 
divisions  of  a  district. 

In  suits  of  a  local  nature,  where  the  defendant  resides 
in  a  different  district,  in  the  same  state,  from  that 

TO  Ladew  v.  Tennessee  Copper  Co.  (C.  C.)  179  Fed.  245 ;  Id.,  218 
U.  S.  357,  31  Sup.  Ct.  81,  54  L.  Ed.  1069 ;  Id.,  218  U.  S.  369,  31  Sup. 
Ct.  84,  54  L.  Ed.  1073.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  273;  Cent. 
Dig.  §  813. 

71  In  re  Louisville  Underwriters,  134  U.  S.  488,  10 "Sup.  Ct.  587,  33 
L.  Ed.  991.  So  as  to  suits  to  obtain  the  issuance  of  a  patent.  Lewis 
Blind  Stitch  Co.  v.  Arbetter  Felling  Machine  Co.  (C.  C.)  181  Fed. 
974.  See  "Admiralty,"  Dec.  Dig.  (Key-No.)  §  32;  Cent.  Dig.  §§  306- 
812;  "Courts"  Dec.  Dig.  (Key-No.)  §  273;  Cent.  Dig.  §  813. 


§    106)  ORDINARY    CIVIL   JURISDICTION  271 

in  which  the  suit  is  brought,  the  plaintiff  may 
have  original  and  final  process  against  him  direct- 
ed to  the  marshal  of  the  district  in  which  he  re- 
sides. 

Any  suit  of  a  local  nature,  at  law  or  in  equity,  where 
the  land  or  other  subject-matter  of  a  fixed  charac- 
ter lies  partly  in  one  district  and  partly  in  anoth- 
er, within  the  same  state,  may  be  brought  in  either 
of  such  districts. 

In  the  case  of  suits  to  reach  property  of  absent  defend- 
ants in  any  district,  certain  proceedings  in  rem 
are  provided  for,  enforceable  by  certain  prescribed 
steps  in  the  nature  of  an  order  of  publication. 
These  are  mainly  suits  to  enforce  liens,  or  to  re- 
move clouds  on  titles.  There  are  also  special  pro- 
visions giving  receivers  extra-territorial  powers 
and  authorizing  the  transfer  of  cases  from  one  di- 
vision or  district  to  another  under  certain  circum- 
stances. 

Section  52  of  the  Judicial  Code  provides  for  suits  not 
local  in  their  nature.  It  reads  as  follows : 

"When  a  state  contains  more  than  one  district,  every 
suit  not  of  a  local  nature,  in  the  district  court  thereof, 
against  a  single  defendant,  inhabitant  of  such  state,  must 
be  brought  in  the  district  where  he  resides;  but  if  there 
are  two  or  more  defendants,  residing  in  different  districts 
of  the  state,  it  may  be  brought  in  either  district,  and  a  du- 
plicate writ  may  be  issued  against  the  defendants,  directed 
to  the  marshal  of  any  other  district  in  which  any  defend- 
ant resides.  The  clerk  issuing  the  duplicate  writ  shall  en- 
dorse thereon  that  it  is  a  true  copy  of  a  writ  sued  out  of 
the  court  of  the  proper  district;  and  such  original  and  du- 
plicate writs,  when  executed  and  returned  into  the  office 
from  which  they  issue,  shall  constitute  and  be  proceeded 
on  as  one  suit ;  and  upon  any  judgment  or  decree  rendered 


272  DISTRICT   COURT ORIGINAL  JURISDICTION        (Ch.  12 

therein,  execution  may  be  issued,  directed  to  the  marshal 
of  any  district  in  the  same  state." 

Section  53  makes  a  quite  similar  provision  as  to  different 
divisions  of  the  same  district. 

As  to  suits  of  a  local  nature,  section  54  provides  as  fol- 
lows: 

"In  suits  of  a  local  nature,  where  the  defendant  resides 
in  a  different  district,  in  the  same  state,  from  that  in  which 
the  suit  is  brought,  the  plaintiff  may  have  original  and  final 
process  against  him,  directed  to  the  marshal  of  the  district 
in  which  he  resides." 

As  to  suits  of  a  local  nature,  where  the  property  lies  in 
more  than  one  district,  section  55  of  the  Judicial  Code 
provides : 

"Any  suit  of  a  local  nature,  at  law  or  in  equity,  where 
the  land  or  other  subject-matter  of  a  fixed  character  lies 
partly  in  one  district  and  partly  in  another,  within  the 
same  state,  may  be  brought  in  the  district  court  of  either 
district;  and  the  court  in  which  it  is  brought  shall  have  ju- 
risdiction to  hear  and  decide  it,  and  to  cause  mesne  or  final 
process  to  be  issued  and  executed,  as  fully  as  if  the  said 
subject-matter  were  wholly  within  the  district  for  which 
such  court  is  constituted." 

The  difference  between  local  and  transitory  actions  is 
well  known  in  the  law,  and  out  of  the  range  of  the  pres- 
ent discussion.  The  courts  have  held  that  an  action  of 
trespass  for  injuries  to  land  is  local  in  its  nature,  and  tri- 
able only  in  the  district  where  the  land  lies.72  So  with  a 
suit  to  cancel  a  mortgage.73 

72  Ellenwood  v.  Marietta  Chair  Co.,  158  U.  S.  105,  15  Sup.  Ct.  771, 
39  L.  Ed.  913;    Kentucky  Coal  Lands  Co.  v.  Mineral  Development 
Co.  (C.  C.)  191  Fed.  899.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  269; 
Cent.  Dig.  §  809. 

73  Co  well  v.  City  Water-Supply  Co.  (C.  C.)  96  Fed.  769,  reversed  121 
Fed.  53,  57  C.  C.  A.  393,  but  not  on  this  point.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  269;  Cent.  Dig.  §  809. 


§    106)  ORDINARY   CIVIL   JURISDICTION  273 

Suits  to  Reach  Property  of  Absent  Defendants  in  the  District 
Section  57  of  the  Judicial  Code  provides  as  follows : 
"When  in  any  suit  commenced  in  any  district  court  of  the 
United  States,  to  enforce  any  legal  or  equitable  lien  .upon 
or  claim  to,  or  to  remove  any  incumbrance  or  lien  or  cloud 
upon  the  title  to  real  or  personal  property  within  the  dis- 
trict where  such  suit  is  brought,  one  or  more  of  the  de- 
fendants therein  shall  not  be  an  inhabitant  of  or  found 
within  the  said  district,  or  shall  not  voluntarily  appear 
thereto,  it  shall  be  lawful  for  the  court  to  make  an  order 
directing  such  absent  defendant  or  defendants  to  appear, 
plead,  answer,  or  demur  by  a  day  certain  to  be  designated, 
which  order  shall  be  served  on  such  absent  defendant  or 
defendants,  if  practicable,  wherever  found,  and  also  upon 
the  person  or  persons  in  possession  or  charge  of  said  prop- 
erty, if  any  there  be ;  or  where  such  personal  service  upon 
such  absent  defendant  or  defendants  is  not  practicable,  such 
order  shall  be  published  in  such  manner  as  the  court  may 
direct,  not  less  than  once  a  week  for  six  consecutive  weeks. 
In  case  such  absent  defendant  shall  not  appear,  plead,  an- 
swer, or  demur  within  the  time  so  limited,  or  within  some 
further  time,  to  be  allowed  by  the  court,  in  its  discretion, 
and  upon  proof  of  the  service  or  publication  of  said  order 
and  of  the  performance  of  the  directions  contained  in  the 
same,  it  shall  be  lawful  for  the  court  to  entertain  jurisdic- 
tion, and  proceed  to  the  hearing  and  adjudication  of  such 
suit  in  the  same  manner  as  if  such  absent  defendant  had 
been  served  with  process  within  the  said  district;  but  said 
adjudication  shall,  as  regards  said  absent  defendant  or  de- 
fendants without  appearance,  affect  only  the  property 
which  shall  have  been  the  subject  of  the  suit  and  under  the 
jurisdiction  of  the  court  therein,  within  such  district;  and 
when  a  part  of  the  said  real  or  personal  property  against 
which  such  proceeding  shall  be  taken  shall  be  within  an- 
other district,  but  within  the  same  state,  such  suit  may  be 
brought  in  either  district  in  said  state:  provided,  how- 

HUGHES  FED.PB.(2D  ED.) — 18 


274  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

ever,  .that  any  defendant  or  defendants  not  actually  per- 
sonally notified  as  above  provided  may,  at  any  time  with- 
in one  year  after  final  judgment  in  any  suit  mentioned  in 
this  section,  enter  his  appearance  in  said  suit  in  said  dis- 
trict court,  and  thereupon  the  said  court  shall  make  an  or- 
der setting  aside  the  judgment  therein  and  permitting  said 
defendant  or  defendants  to  plead  therein  on  payment  by 
him  or  them  of  such  costs  as  the  court  shall  deem  just;  and 
thereupon  said  suit  shall  be  proceeded  with  to  final  judg- 
ment according  to  law." 

This  act  is  intended,  in  the  cases  covered  by  it,  to  regu- 
late the  suit  by  the  location  of  the  res;  and  consequently 
the  district  or  residence  of  the  plaintiff  or  defendant  has 
nothing  to  do  with  it,  though  the  controversy  must  be  one 
of  which  the  court  has  jurisdiction  from  diversity  of  citi- 
zenship or  otherwise.  Suit,  however,  may  be  brought 
where  the  property  is,  although  neither  of  the  parties  re- 
sides there.74  The  statute  covers  many  different  kinds  of 
suits. 

Suits  to  Enforce  Any  Legal  or  Equitable  Lien  upon  or  Claim 

to  Real  or  Personal  Property  in  the  District 
A  suit  to  quiet  title  conies  under  this  provision.75  Also 
a  suit  for  partition  of  land  is  treated  as  a  claim  to  or  suit 
to  settle  title  to  real  estate.76  So,  also,  a  suit  to  reach  a 
fund  in  the  hands  of  a  trustee  in  the  jurisdiction  of  the 
court.77  Suits  to  foreclose  mortgages  clearly  come  under 
the  provision.78  A  suit  to  enforce  a  lien  of  a  judgment  on 

74  GREELEY  v.  LOWE,  155  U.  S.  58,  15  Sup.  Ct.  24,  39  L.  Ed.  69; 
Kentucky  Coal  Lands  Co.  v.  Mineral  Development  Co.  (C.  C.)  191  Fed. 
899,  912 ;  Texas  Co.  v.  Central  Fuel  Co.,  194  Fed.  1,  114  C.  C.  A.  21. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  269;  Cent.  Dig.  §  809. 

75U.  S.  v.  Southern  Pac.  Co.  (C.  C.)  63  Fed.  481.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  269;  Cent.  Dig.  §  809. 

76  GREELEY  v.  LOWE,  155  U.  S.  58,  15  Sup.  Ct  24,  39  L.  Ed.  69. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  269;  Cent.  Dig.  §  803. 

77  Goodman  v.  Niblack,  102  U.  S.  556,  26  L.  Ed.  229.    See  "Courts." 
Dec.  Dig.  (Key-No.)  §  269;   Cent.  Dig.  §  809. 

78  Seybert  v.  Shamokin  &  Mt.  C.  Electric  Railroad  Co.  (C.  C.)  110 
Fed.  810.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  269;   Cent.  Dig.  §  809. 


§    106)  ORDINARY    CIVIL   JURISDICTION  275 

property  within  the  district  is  covered  by  the  statute;79  so, 
also,  an  action  of  ejectment.80 

Suits  to  Remove  Any  Incumbrance  or  Lien  or  Cloud  upon  the 

Title  to  Real  or  Personal  Property 

A  suit  by  a  creditor  of  a  corporation  to  set  aside  a  con- 
veyance made  by  the  corporation  comes  under  this  provi- 
sion of  the  act.81  A  suit  to  remove  a  cloud  upon  a  title 
caused  by  a  tax  sale  is  covered  by  the  act.82  On  the  oth- 
er hand,  it  is  inapplicable  to  purely  personal  actions,  as  to 
suits  to  cancel  contracts  where  no  lien  or  claim  or  title  to 
property  is  involved,  and  suits  to  abate  a  nuisance.83  The 
act  is  intended  to  give  the  right  to  enforce  claims  or  liens 
existing  before  the  institution  of  the  suit,  and  hence  it 
does  not  cover  proceedings  by  foreign  attachment,  where 
the  only  lien  arises  from  the  institution  of  the  suit  itself. 
In  the  federal  courts  the  proceeding  by  attachment  is  a 
mere  incident  to  a  personal  suit  against  the  owner,  and 
cannot  be  brought  unless  the  defendant  can  be  served 
legally  with  process.84  Prior  to  the  jurisdiction  acts  of 
1887-88,  process  could  be  served  on  a  defendant  if  found 

79  De  Hierapolis  v.  Lawrence  (C.  C.)  99  Fed.  321;  Hultberg  v. 
Anderson  (C.  C.)  170  Fed.  657.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
269;  Cent.  Dig.  §  809. 

so  Spencer  v.  Kansas  City  Stockyards  Co.  (C.  C.)  56  Fed.  741;  Elk 
Garden  Co.  v.  T.  W.  Thayer  Co.  (C.  C.)  179  Fed.  556.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  269;  Cent.  Dig.  §  809. 

si  Mellen  v.  Moline  Malleable  Iron  Works,  131  U.  S.  352,  9  Sup. 
Ct.  781,  33  L.  Ed.  178.  See  "Courts,"  Dec.  Dig.  (Keu-No.)  §  269; 
Cent.  Dig.  §  809. 

82  Dick  v.  Foraker,  155  U.  S.  404,  15  Sup.  Ct.  124,  39  L.  Ed.  201. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  269;  Cent.  Dig.  §  809. 

ss  New  York  Life  Ins.  Co.  v.  Bangs,  103  U.  S.  435,  26  L.  Ed.  580; 
Ladew  v.  Tennessee  Copper  Co.,  218  U.  S.  357,  31  Sup.  Ct.  81,  54 
L.  Ed.  1069.  But  it  applies  where  the  contracts  are  a  lien  or  part 
of  a  chain  of  title.  Citizens'  Savings  &  Trust  Co.  v.  Illinois  C.  R. 
Co.,  205  U.  S.  46,  27  Sup.  Ct.  425,  51  L.  Ed.  703.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  269,  274;  Cent.  Dig.  §§  809,  814. 

s*  Ex  parte  DES  MOINES  &  M.  R.  CO.,  103  U.  S.  794,  26  L.  Ed. 
461.  Big  Vein  Coal  Co.  v.  Read,  229  U.  S.  31,  33  Sup.  Ct.  694,  57  L. 

Ed. .  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  269,  271;  Cent.  Dig.  §§ 

809,  810. 


276  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  12 

in  a  district,  though  he  did  not  reside  therein;  under  this 
last  amendment  this  can  no  longer  be  done.  On  the  other 
hand,  even  under  this  last  amendment,  suit  can  be  brought 
within  the  district  of  the  residence  of  the  plaintiff,  and  ac- 
companied by  an  attachment,  if  service  can  be  obtained  on 
the  defendant.  A  suit  for  the  specific  performance  of  a 
contract  has  also  been  held  not  to  come  within  the  act, 
as  a  decree  in  such  cases  acts  in  personam,  and  not  on  the 
land  and  property  itself.85  A  suit  to  restrain  the  enforce- 
ment of  a  contract  of  sale  of  stock  by  a  corporation  to  cer- 
tain other  defendants  as  illegal  does  not  come  within  the 
act,  as  there  is  no  question  of  title  or  claim  in  such  a 
case.86  A  suit  by  heirs  against  trustees  under  a  will  to 
recover  a  residue  in  their  hands  is  not  covered  by  the  act.87 

Procedure  under  the  Act 

It  is  best,  even  as  between  two  defendants  of  different 
districts  in  the  same  state,  to  follow  the  language  of  the  act 
and  secure  an  order  from  the  court  directing  the  absent  de- 
fendant or  defendants  to  appear,  plead,  answer,  or  demur 
by  a  time  certain  to  be  designated,  and  then  to  serve  that 
order  on  the  defendants,  if  practicable,  and  upon  the  person 
in  charge  of  the  property.88  But  under  sections  52,  54,  and 
55  of  the  Judicial  Code  the  original  process  could  be  sent 
into  another  district  in  the  same  state  and  served.  They 
ought,  at  least,  to  cover  the  case  of  defendants  in  different 
districts  in  the  same  state.  If,  however,  original  process 
cannot  be  served,  and  only  the  order  of  the  court  under 

ss  Municipal  Inv.  Co.  v.  Gardiner  (C.  C.)  62  Fed.  954.  But  the  act 
would  apply  if  any  lien  or  charge  on  the  land  was  reserved  as  part 
of  the  contract  Texas  Co.  v.  Central  Fuel  Oil  Co.,  194  Fed.  1,  114 
C.  C.  A.  21.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  269;  Cent.  Dig.  § 
809. 

seLengel  v.  American  Smelting  &  Refining  Co.  (C.  C.)  110  Fed.  19. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  269,  272;  Cent.  Dig.  §§  809-S11. 

ST  Fayerweather  v.  Ritch  (C.  C.)  89  Fed.  385.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  269-21/2;  Cent.  Dig.  §§  809-811. 

ss  Seybert  v.  Shamokin  &  Mt.  C.  Electric  Railroad  Co.  (C.  C.)  110 
Fed.  810.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  344;  Cent.  Dig.  §  917. 


§    106)  ORDINARY    CIVIL   JURISDICTION  277 

this  last  act,  such  order  can  be  sent  not  only  into  another 
district  of  the  same  state,  but  into  any  other  part  of  the 
United  States,  and  can  be  served  upon  the  defendant,  if 
practicable,  wherever  found.89  It  is  therefore  necessary, 
first,  to  make  some  effort  to  find  the  defendant,  and  to 
serve  on  him  the  order  of  the  court  requiring  him  to  ap- 
pear and  defend  himself,  and  also  to  serve  it  upon  the  per- 
son in  charge  of  the  property.  Only  after  that  is  done 
would  it  be  allowable  to  resort  to  the  substituted  service  of 
publication,  and  the  court  will  probably  require  some 
proof  of  an  attempt  to  locate  the  defendant  before  allow- 
ing the  substituted  service. 

The  act  carries  out  the  theory  of  procedings  in  rem  un- 
der constructive  service,  and  makes  it  only  binding  as  to 
the  property  itself  in  case  there  is  no  appearance.  If  there 
is  an  appearance,  on  the  other  hand,  the  suit  becomes  an 
ordinary  suit  in  personam,  and  could  be  proceeded  with  by 
the  plaintiff  to  a  personal  judgment.90 

An  important  addition  to  the  pre-existing  law  is  embod- 
ied in  section  56  of  the  Judicial  Code,  which  confers  cer- 
tain extra-territorial  powers  on  receivers  of  property  situ- 
ated in  more  than  one  district  of  the  same  circuit.  It  will 
be  discussed  in  another  connection.91 

Section  58  'of  the  Code  permits  the  transfer  of  cases  by 
consent  from  one  division  to  another  of  the  same  district; 
and  sections  59  and  60  for  the  proper  disposition  of  cases 
on  the  formation  of  new  districts  or  divisions. 

8»Mellen  v.  Moline  Malleable  Iron  Works,  131  U.  S.  352,  9  Sup. 
Ct.  781,  33  L.  Ed.  178.  See  "Courts,"  Dec.  Dig.  (Key-Wo.)  §  344;  Cent. 
Dig.  §  917. 

»o  Cooper  v.  Reynolds,  10  Wall.  308,  19  L.  Ed.  931;  Pennoyer  v. 
Neff.  95  U.  S.  714,  24  L.  Ed.  565.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  844;  Cent.  Dig.  §  917. 

9i  Post,  p.  295. 


278  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 


CHAPTER  XIII 

THE  DISTRICT  COURT  (Continued)— ORIGINAL  JURISDICTION 

(Continued) 

107.  Same — Jurisdiction  as  Affected  by  Assignment. 

108.  Same — Devices  to  Confer  Jurisdiction. 

109.  Jurisdiction  as  Incident  to  or  Derivative  from  Other  Grounds 

of  Jurisdiction. 


SAME— JURISDICTION  AS  AFFECTED  BY  AS- 
SIGNMENT 

107.  The  assignee  of  a  chose  in  action  arising  out  of  con- 
tract cannot  sue  in  the  federal  courts  unless  his 
assignor  could  have  sued  there,  except  in  certain 
cases  named  in  the  statute. 

In  addition  to  the  qualification  as  to  the  right  to  sue  in 
reference  to  residence  of  the  plaintiff  or  defendant,  there 
is  a  further  qualification  in  the  statute  in  reference  to  the 
character  of  the  claim  to  be  asserted.  One  of  the  clauses 
of  section  24,  par.  1,  of  the  Judicial  Code,  provides: 

"No  district  court  shall  have  cognizance  of  any  suit 
(except  upon  foreign  bills  of  exchange)  to  recover  upon 
any  promissory  note  or  other  chose  in  action  in  favor  of 
any  assignee,  or  of  any  subsequent  holder  if  such  instru- 
ment be  payable  to  bearer  and  be  not  made  by  any  cor- 
poration, unless  such  suit  might  have  been  prosecuted  in 
such  court  to  recover  upon  said  note  or  other  chose  in  ac- 
tion if  no  assignment  had  been  made." 

The  clause  applies  to  any  cause  of  action  arising  out  of 
a  contract  and  subsequently  assigned.  For  instance,  a  suit 
to  enforce  specific  performance  of  a  contract  cannot  be 


§    107)  ORDINARY    CIVIL   JURISDICTION  279 

brought  by  the  assignee  of  such  a  cause  of  action  unless 
the  assignor  also  could  have  brought  it.1 

So  a  suit  to  enforce  the  lien  of  a  judgment  growing  out 
of  a  contractual  right  of  action  cannot  be  brought  by  the 
assignee  unless  the  judgment  creditor  also  could  have 
brought  it.2 

In  the  cases  cited  in  the  last  note,  the  Supreme  Court 
limits  its  decision  to  judgments  based  upon  causes  of  ac- 
tion growing  out  of  contracts.  The  principle  should  ap- 
ply also  to  an  assignment  of  a  judgment  based  on  a  cause 
of  action  springing  out  of  tort.  It  will  be  seen  presently 
that  the  statute  does  not  apply  to  a  cause  of  action  for 
tort,  but,  when  that  cause  of  action  is  reduced  to  judgment, 
under  ordinary  principles  the  tort  is  merged  in  the  judg- 
ment, and  the  judgment  creditor  then  has  a  cause  of  ac- 
tion springing  out  of  an  implied  contract. 

The  statute  applies  to  suits  by  the  assignee  of  city  war- 
rants not  payable  to  bearer,  and  also  to  a  purchaser  of 
such  warrants  at  a  sale  held  by  an  administrator  of  the 
original  payee  under  an  order  of  the  probate  court.3 

It  applies  to  notes  payable  to  bearer,  unless  the  maker 
is  a  corporation.  A  note  to  the  maker's  own  order,  and 
indorsed  by  the  maker  in  blank,  is  a  note  payable  to  bear- 
er, and  the  holder  of  such  a  note  is  not  an  assignee  in  the 
sense  of  the  statute;  the  reason  being  that  the  cause  of 

1  Corbin  v.  Black  Hawk  County,  105  TT.  S.  659,  26  L.  Ed.  1136 ; 
Plant  Inv.  Co.  v.  Jacksonville,  T.  &  W.  R.  Co.,  152  U.  S.  71,  14  Sup. 
Ct.  483,  38  L.  Ed.  358.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;  Cent. 
Dig.  §§  865-875. 

2  Walker  v.  Powers,  104  U.  S.  245,  26  L.  Ed.  729 ;   Mississippi  Mills 
v.  Cohn,  150  U.  S.  202,  14  Sup.  Ct.  75,  37  L.  Ed.  1052.    But  the  judg- 
ment creditor  may  sue  if  the  requisites  concur  as  to  him,  though 
judgment  was  obtained  on  an  assigned  cause  of  action  on  which  he 
could  not  have  sued.     Hultberg  v.  Anderson  (C.  C.)  170  Fed.  657. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  812;   Cent.  Dig.  §§  865-875. 

a  City  of  New  Orleans  v.  Benjamin,  153  U.  S.  411,  14  Sup.  Ct.  905, 
38  L.  Ed.  764;  Glass  v.  Concordia,  176  U.  S.  207,  20  Sup.  Ct.  346, 
44  L.  Ed.  436.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig. 
§§  865-875. 


280  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

action  by  him  in  such  case  is  necessarily  original,  as  the 
maker  and  payee  of  the  note  is  the  same.* 

But  the  statute  does  apply  if  the  note  is  payable  to  any 
payee  not  the  maker,  and  indorsed  by  such  payee  in  blank, 
for  there  an  additional  party  comes  in.5 

Notes  made  payable  to or  order — that  is,  with  the 

payee's  name  left  blank — are  payable  to  bearer  in  the  sense 
of  the  statute.6 

Coupons  are  also  notes  payable  to  bearer  in  the  sense 
of  the  statute,  although  the  bonds  from  which  they  are  de- 
tached are  not,  for  under  the  principles  of  the  law  merchant 
a  coupon  is  an  independent  obligation.7 

Under  the  statute,  however,  notes  of  corporations  pay- 
able to  bearer  are  excepted  from  its  operations,  so  that 
the  holder  of  such  a  note  can  sue  in  the  federal  courts  in- 
dependently of  the  citizenship  of  the  original  assignor. 
This  principle,  however,  applies  only  to  corporate  notes 
payable  to  bearer,  and  not  to  corporate  notes  payable  to 
order  and  indorsed.8 

Municipal  corporations  come  within  the  language  of  the 
exception,  and  the  holder  of  their  notes,  if  payable  to  bear- 
er, can  sue  independently  of  the  citizenship  of  the  assign- 
or.8 

4  Barling  v.  Bank,  50  Fed.  260,  1  C.  C.  A.  510.  Sec  "Courts,"  Dec. 
Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

s  State  Nat.  Bank  of  Denison  v.  Eureka  Springs  Water  Co.  (C.  C.) 
174  Fed.  827.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  812;  Cent.  Dig.  §§ 
865-875. 

e  Lyon  County,  Iowa,  v.  Keene  Five-Cent  Sav.  Bank,  100  Fed.  337, 
40  C.  C.  A.  391.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig. 
§§  865-875. 

i  Independent  School  Dist.  of  Sioux  City,  Iowa,  v.  Rew,  111  Fed. 
1,  49  C.  C.  A.  198,  55  L.  R.  A.  364.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  312;  Cent.  Dig.  §3  865-875. 

s  Thomson  v.  Elton  (C.  C.)  100  Fed.  145 ;  Lake  County  v.  Dudley, 
173  U.  S.  243,  19  Sup.  Ct.  398,  43  L.  Ed.  684.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

»  City  of  New  Orleans  v.  Quinlan,  173  U.  S.  191,  19  Sup.  Ct.  329, 
43  L.  Ed.  664.  The  fact  that  the  rates  are  payable  to  the  order  of 
the  city  treasurer  and  indorsed  by  him  as  such  in  blank,  for  the 


§    107)  ORDINARY    CIVIL,   JURISDICTION  281 

This  same  principle  applies  to  an  Ohio  township,  which 
under  their  law  is  a  corporation.10 

Choses  in  Action 

This  applies  to  any  right  of  action  springing  out  of  a 
contract,  as  stated  above;  for  instance,  a  suit  by  the  as- 
signee of  a  mortgage  to  quiet  title.11 

Under  this  term  is  included  an  assignment  of  water  rents 
by  a  water  company  under  a  mortgage,  with  the  right  to 
collect  the  water  rents  as  additional  security.  The  as- 
signee of  such  right  of  action  cannot  sue  unless  the  as- 
signor could  have  sued.12 

Causes  of  action  springing  out  of  tort,  however,  are  not 
included  in  the  choses  in  action  mentioned  by  the  statute, 
as  they  apply  only  to  choses  in  action  growing  out  of  con- 
tractual rights.  Hence  the  assignee  of  a  cause  of  action 
springing  from  tort  can  sue  in  his  own  name  independent- 
ly of  the  citizenship  of  the  assignor.  Such  can  be  done, 
for  instance,  in  the  case  of  an  action  of  replevin.13 

So  an  assignee  of  a  right  of  action  for  trespass  to  real 
property  can  sue  independently  of  the  citizenship  of  his 
assignor.14 

mere  purpose  of  giving  them  currency,  does  not  affect  their  character 
as  notes  payable  to  bearer.  Citizens'  Savings  Bank  v.  Newbury- 
port,  169  Fed.  766,  92  C.  C.  A.  232 ;  Blair  v.  Chicago,  201  U.  S.  400, 
26  Sup.  Ct.  427,  50  L.  Ed.  801.  See  "Courts,"  Dec,  Dig.  (Key-No.)  § 
312;  Cent.  Dig.  §§  865-875. 

10  Loeb  v.  Columbia  Township  Trustees,  179  U.  S.  472,  21  Sup.  Ct 
174,  45  L.  Ed.  280.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;   Cent. 
Dig.  §§  865-875. 

11  Farr  v.  Hobe-Peters  Land  Co.,  188  Fed.  10,  110  C.  C.  A.  160. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;   Cent.  Dig.  §§  865-875. 

12  City  of  Eau  Claire  v.  Pay  son,  107  Fed.  552,  46  C.  C.  A.  466; 
American  Waterworks  &  Guarantee  Co.  v.  Water  Co.  (C.  C.)  115  Fed. 
171.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

is  Deshler  v.  Dodge,  16  How.  622,  14  L.  Ed.  1084;  Buckingham  v. 
Dake,  112  Fed.  258.  50  C.  C.  A.  492.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  312;  Cent.  Dig.  §§  865-875. 

i*  Ambler  v.  Eppinger,  137  U.  S.  480,  11  Sup.  Ct.  173,  34  L.  Ed. 
765;  Noyes  v.  Crawford  (C.  C.)  133  Fed.  796.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 


282  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

And  the  same  principle  applies  to  an  assigned  right  of 
action  against  a  bank  for  not  protesting  a  draft  sent  to  it 
by  another  bank  for  collection.15 

M-eaning  of  "Assignee" 

The  statute  applies  only  to  a  cause  of  action  existing  in 
some  one  else  and  assigned.  If  the  cause  of  action  in  its 
nature  is  inherent  in  the  suitor,  the  form  which  the  note 
evidencing  the  contract  may  have  taken  does  not  affect  his 
right  to  sue.  For  instance,  in  Holmes  v.  Goldsmith,16  a 
note  was  made  for  the  accommodation  of  the  payee,  and 
discounted  also  for  his  accommodation,  he  indorsing  it  to 
the  party  who  discounted  it.  In  a  suit  by  the  holder  of 
the  note,  it  was  held  that  the  statute  did  not  apply;  that 
the  holder  could  go  against  the  payee  as  the  party  really 
liable,  regardless  of  the  fact  that  he  was  in  form  the  in- 
dorser  or  payee,  for  the  reason  that,  as  it  was  accommoda- 
tion paper,  the  payee  could  not  have  sued  the  makers ;  and 
therefore,  as  he  had  no  right  of  action,  there  was  nothing 
which  he  could  assign,  and  hence  that  the  holder  of  the 
note  could  sue,  not  by  virtue  of  any  assignment  from  him, 
but  by  virtue  of  an  original  liability  of  his  own. 

So,  also,  where  a  party  gave  a  draft  on  a  city  and  the 
city  accepted  the  draft,  in  a  suit  by  the  payee  of  the  draft 
against  the  city  as  acceptor,  it  was  held  that  the  suit  was 
based  upon  an  original  liability  of  the  city  to  the  payee, 
and  not  upon  any  assigned  right  of  action.17 

Nor  does  the  statute  apply  to  a  party  claiming  under  the 
equitable  doctrine  of  subrogation,  as  his  right  of  action  is 
an  original  one  and  not  an  assigned  one,  and  this  is  not  af- 

is  Barney  v.  Globe  Bank,  Fed.  Gas.  No.  1,031.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

16147  U.  S.  150,  13  Sup.  Ct.  288,  37  L.  Ed.  118.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

17  City  of  Superior  v.  Ripley,  138  U.  S.  93,  11  Sup.  Ct  288,  34  L. 
Ed.  914.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865- 
S75. 


§    107)  ORDINARY   CIVIL   JURISDICTION  283 

fected  by  the  fact  that  an  assignment  may  have  been  made 
to  evidence  the  party's  right  to  subrogation.18 

Nor  does  the  statute  defeat  the  right  of  the  assignee  to 
sue  in  his  own  name  where  the  original  contract  had  been 
modified  by  a  new  contract,  and  the  right  of  action  proper- 
ly arises  under  the  new  cqntract.  This  is  illustrated  by 
American  Colortype  Co.  v.  Continental  Colortype  Co.19 
In  this  case  employes  of  a  corporation  had  agreed,  during 
their  periods  of  employment,  that  they  would  not  di- 
vulge the  secret  processes  of  their  employer.  The  em- 
ployer transferred  these  contracts  to ,  another  company, 
and  the  employes  agreed  to  the  transfer.  In  a  suit  to 
restrain  these  employes  from  entering  the  employment 
•of  a  rival  corporation,  it  was  held  that  under  this  trans- 
action the  company  was  asserting  a  right  of  action  of 
its  own,  and  not  any  assigned  right  of  action  from  the 
first  corporation. 

The  statute  plainly  refers  only  to  an  assignee  of  the 
right  of  action,  and  does  not  affect  the  defendant's  side  of 
the  litigation.  Hence,  where  the  holder  of  a  lease  assigned 
it  and  the  assignee  took  possession,  a  suit  by  the  lessor 
-against  the  assignee  of  the  lessee,  based  on  the  lease,  was 
held  not  covered  by  the  statute.20 

Nor  does  the  statute. apply  to  a  party  suing  on  a  forth- 
•coming  bond  in  an  attachment  proceeding  by  virtue  of  a 
state  statute  which  required  the  sheriff  to  take  such  a 
'bond,  such  bond  being  for  the  benefit  of  parties  injured  by 
the  attachment,  for  the  right  of  action  in  such  case  is  in 


is  City  of  New  Orleans  v.  Gaines'  Adm'r,  138  U.  S.  595,  11  Sup. 
Ct.  428,  34  L.  Ed.  1102.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312; 
•Cent.  Dig.  §§  865-875. 

i»  188  U.  S.  104,  23  Sup.  Ct.  265,  47  L.  Ed.  404.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  812;  Cent.  Dig.  §§  865-815. 

20  Adams  v.  Shirk,  105  Fed.  659,  44  C.  C.  A.  653.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 


284  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

the  party  injured,  and  not  by  virtue  of  any  assignment 
from  the  sheriff.21 

The  statute  imposes  this  restriction  on  the  jurisdiction 
simply  in  reference  to  the  original  assignor  and  the  last  as- 
signee. If  jurisdiction  can  be  obtained  as  far  as  they  are 
concerned,  the  citizenship  of  intermediate  assignees  or  in- 
dorsers  does  not  defeat  it.22 

It  has' been  held  that  the  statute  imposes  this  restriction 
simply  so  far  as  the  citizenship  of  the  party  is  concerned, 
not  in  reference  to  any  other  requisite  of  jurisdiction;  and 
hence  a  party  who  held  several  assignments  which  togeth- 
er aggregated  $2,000,  and  in  which  the  assignors  had  the 
proper  citizenship,  was  held  to  be  entitled  to  sue,  though 
the  other  separate  assignors  could  not  have  sued,  on  ac- 
count of  the  fact  that  the  separate  claims  held  by  them 
were  less  than  $2,000.23  The  recent  case  of  Waite  v.  City 
of  Santa  Cruz  24  contains  expressions  in  conflict  with  this, 
though  it  discussed  another  section  of  the  act,  and  really 
turned  on  the  point  that  the  transfer  was  not  bona  fide. 

The  requisite  as  to  the  citizenship  applies  simply  to  the 
time  of  institution  of  suit,  not  to  the  time  of  assignment. 
If  the  proper  citizenship  exists  as  to  the  assignor  and  as- 
signee when  suit  is  brought,  the  fact  that  it  did  not  exist 
when  the  assignment  was  made  does  not  affect  the  ques- 
tion.25 

21  Smith  v.  Packard,  98  Fed.  793,  39  C.  C.  A.  294.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

22  Emsheimer  v.  New  Orleans,  186  U.  S.  33,  22  Sup.  Ct.  770,  46 
L.  Ed.  1042 ;    Farr  v.  Hobe-Peters  Land  Co.,  188  Fed.  10,  110  C.  C.  A. 
160.    See  "Courts"  Dec.  Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

23  Bowden  v.  Burnham,  59  Fed.  752,  8  C.  C.  A.  248;   Hartford  Fire 
Ins.  Co.  v.  Erie  R.  Co.  (C.  C.)  172  Fed.  899.    See  "Courts,"  Dec.  Dig. 
(Key-No.)  §§  312,  328;    Cent.  Dig.  §§  865-875. 

24  184  U.  S.  302,  22  Sup.  Ct.  327,  46  L.  Ed.  552.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  312,  328;   Cent.  Dig.  §§  865-875. 

25  Emsheimer  v.  New  Orleans,  186  U.  S.  33,  22  Sup.  Ct.  770,  46 
L.  Ed.  1042;    Noyes  v.  Crawford  (C.  C.)  133  Fed.  796.     Where  the 
claim  is  transferred  back  to  the  original  owner  by  the  assignee,  the 
inability  of  the  latter  to  sue  does  not  affect  the  right  of  the  original 


§    108)  ORDINARY    CIVIL   JURISDICTION  285 

In  instituting  such  a  suit,  it  is  essential  that  the  record 
must  show  on  its  face  the  requisite  citizenship  both  of  the 
assignor  and  assignee.26 

In  considering  the  questions  arising  under  this  act,  it  is 
important  to  bear  in  mind  that,  while  a  somewhat  similar 
requirement  has  been  in  the  federal  statutes,  since  the  orig- 
inal judiciary  act  of  1789,  the  language  of  the  present  act 
is  very  different.  Hence  decisions  on  old  cases  must  be 
carefully  compared  with  the  acts  then  in  force  before  they 
can  be  safely  cited  as  bearing  on  the  present  act. 

SAME— DEVICES  TO   CONFER  JURISDICTION 

108.  Attempts  to  confer  jurisdiction  by  pretended  changes 
of  citizenship  or  residence,  colorable  assignments, 
or  improper  arrangement  of  parties  are  forbidden, 
and  will  cause  dismissal  of  the  suit  by  the  court 
ex  mero  motu,  if  discovered. 

The  thirty-seventh  section  of  the  Judicial  Code  provides 
as  follows :  "If  in  any  suit  commenced  in  a  district  court, 
or  removed  from  a  state  court  to  a  district  court  of  the 
United  States,  it  shall  appear  to  the  satisfaction  of  the  said 
district  court,  at  any  time  after  such  suit  has  been  brought 
or  removed  thereto,  that  such  suit  does  not  really  and  sub- 
stantially involve  a  dispute  or  controversy  properly  with- 
in the  jurisdiction  of  said  district  court,  or  that  the  parties 
to  said  suit  have  been  improperly  or  collusively  made  or 
joined,  either  as  plaintiffs  or  defendants,  for  the  purpose 
of  creating  a  case  cognizable  or  removable  under  this  chap- 
ter, the  said  district  court  shall  proceed  no  further  therein, 

owner.  Moore  Bros.  Glass  Co.  v.  Drevet  Mfg.  Co.  (C.  C.)  154  Fed. 
737.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  272,  312;  Cent.  Dig.  §§ 
865-^875. 

26  Parker  v.  Ormsby,  141  U.  S.  81,  11  Sup.  Ct.  912,  35  L.  Ed.  654; 
Smith  v.  Fifield,  91  Fed.  561,  33  C.  C.  A.  681.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  322;  Cent.  Dig.  §§  876-881. 


286  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

but  shall  dismiss  the  suit  or  remand  it  to  the  court  from 
which  it  was  removed,  as  justice  may  require,  and  shall 
make  such  order  as  to  costs  as  shall  be  just." 

This  statute  is  intended  to  prevent  attempts  to  confer 
upon  the  federal  courts  jurisdiction  not  given  them  by 
law. 

Changes  of  Citizenship 

It  has  sometimes  happened  that  a  citizen  changes  his 
citizenship  for  the  purpose  of  acquiring  a  right  to  sue  in 
the  federal  courts.  If  his  change  is  an  actual,  bona  fide 
change,  and  he  removes  and  takes  up  his  domicile  in  a  new 
place,  with  the  intention  of  remaining  there,  the  federal 
court  would  have  jurisdiction,  and  the  single  fact  that  it 
was  his  intention  to  confer  jurisdiction  would  not  defeat 
it.  This  was  held  before  the  enactment  of  the  above  stat- 
ute, and  has  not  been  changed  by  the  statute.27 

Independently  of  this  statute,  a  change  of  the  citizen- 
ship of  the  litigant,  in  the  federal  courts,  after  the  suit  has 
been  brought,  does  not  defeat  the  jurisdiction;  nor  does 
the  fact  that  new  parties  come  into  the  litigation,  as  juris- 
diction is  tested  by  the  state  of  facts  at  the  institution  of 
the  suit,  and  not  by  subsequent  changes.28 

Transfer  of  Causes  of  Action 

This  statute  has  come  before  the  courts  more  frequently 
on  such  transfers  than  where  attempts  have  been  made  to 
change  the  residence  of  litigants.  The  principle,  however, 
is  the  same.  If  the  assignment  of  the  cause  of  action  is  an 
actual,  bona  fide  assignment,  leaving  no  interest  whatever 
in  the  assignor,  then  the  court  would  have  jurisdiction,  sub- 
ject to  the  restriction  already  discussed,  as  to  the  cases  in 


27  Jones  v.  League,  18  How.  76,  15  L.  Ed.  263;  MORRIS  v.  GIL- 
MER.  129  U.  S.  313,  9  Sup.  Ct.  289,  32  L.  Ed.  690.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  807;  Cent.  Dig.  §  854. 

28phelps  v.  Oaks,  117  U.  S.  236,  6  Sup.  Ct.  714,  29  L.  Ed.  888; 
Collins  v.  City  of  Ashland  (D.  C.)  112  Fed.  175.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  319;  Cent.  Dig.  §  864. 


§    108)  ORDINARY    CIVIL,   JURISDICTION  287 

which  an  assignee  can  sue;  and  that  jurisdiction  would  not 
be  defeated  by  the  motive  of  the  parties  in  making  or  ac- 
cepting the  assignment.  But  where  the  assignment  is  col- 
orable— as  for  instance,  where  it  is  made  simply  for  the 
purpose  of  collection — then  the  principle  would  apply,  and 
the  court  would  refuse  jurisdiction.  The  cases  of  Wil- 
liams v.  Nottawa  Tp.,29  Farmington  v.  Pillsbury,30  and 
New  Providence  Tp.  v.  Halsey  31  illustrate  the  refusal  of 
the  court  to  take  jurisdiction  where  the  assignment  was  for 
collection  only.  But  here,  too,  if  the  assignment  is  an  ac- 
tual one,  the  motive  does  not  affect  the  question.32  On 
the  other  hand,  if  the  transfer  to  one  nonresident  citizen  is 
good,  so  that  he  could  sue,  the  subsequent  transfer  by  him 
to  another,  though  with  the  intent  of  giving  the  other  a 
right  to  sue,  would  not  invalidate  it.33 

The  statute  applies  to  a  colorable  assignment  of  a  claim 
intended  to  be  added  to  a  bona  fide  claim  in  order  to  make 
up  the  necessary  jurisdictional  amount.34 

An  interesting  question  arises  in  the  case  of  organization 
of  new  corporations,  as  affecting  this  question.  In  Le- 
high  Min.  &  Mfg.  Co.  v.  Kelly  35  the  stockholders  of  a  Vir- 

2»  104  TJ.  S.  209,  26  L.  Ed.  719.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  312;  Cent.  Dig.  §§  865-875. 

so  114  U.  S.  138,  5  Sup.  Ct.  807,  29  L.  Ed.  114.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-815. 

si  117  U.  S.  336,  6  Sup.  Ct.  764,  29  L.  Ed.  904.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  312;  Cent.  Dig.  §§  865-875. 

saLanier  v.  Nash,  121  U.  S.  404,  7  Sup.  Ct.  919,  30  L.  Ed.  947; 
Blair  v.  Chicago,  201  U.  S.  400,  26  Sup.  Ct.  427,  50  L.  Ed.  801; 
O'Neill  v.  Wolcott  Mining  Co..  174  Fed.  527,  98  C.  C.  A.  309,  27  L. 
R.  A.  (N.  S.)  200.  See  "Courts,"  Dec.  Dig.  (Key-No.)  g  312;  Cent. 
Dig.  §§  865-875. 

33  Ashley  v.  Board  of  Sup'rs  of  Presque  Isle  County,  83  Fed.  534, 
27  C.  C.  A.  585.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  312;  Cent. 
Dig.  §§  865-875. 

3*  Waite  v.  Santa  Cruz,  184  U.  S.  302,  22  Sup.  Ct.  327,  46  L.  Ed. 
552 ;  Woodside  v.  Beekham,  216  U.  S.  117,  30  Sup.  Ct.  367,  54  L.  Ed. 
408;  ante,  p.  284.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  328;  Cent. 
Dig.  §§  890-896. 

35  160  U.  S.  327,  16  Sup.  Ct.  307,  40  L.  Ed.  444.  See,  also,  Miller 
&  Lux  v.  East  Side  Canal  &  Irrigation  Co.,  211  TJ.  S.  293,  29  Sup.  Ct 


288  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

ginia  corporation  organized  a  Pennsylvania  corporation, 
and  conveyed  to  it  the  land,  which  up  to  that  time  had 
stood  in  the  name  of  the  Virginia  corporation.  The  Vir- 
ginia corporation,  however,  was  still  kept  in  existence,  so 
that,  although  there  was  no  express  agreement  by  the 
Pennsylvania  corporation  to  reconvey  after  the  termination 
of  the  suit,  it  was  in  the  power  of  the  stockholders  of  the 
Virginia  corporation  to  compel  such  reconveyance.  The 
court  held  that,  under  such  circumstances,  the  jurisdiction 
could  not  be  sustained,  as  it  was  a  mere  device  that  came 
within  the  prohibition  of  the  statute.  On  the  other  hand, 
in  Irvine  Co.  v.  Bond  3e  an  individual  organized  a  corpora- 
tion, appointed  as  a  board  of  directors  parties  whom  he 
could  control,  and  conveyed  to  them  just  enough  stock  to 
qualify  them,  and  then  conveyed  to  this  new  corporation 
the  property  as  to  which  suit  was  to  be  brought.  There 
was  nothing  to  show  any  intent  to  convey  the  fruits  of 
litigation  back  to  the  individual,  though  he  controlled  all 
but  a  few  shares  of  the  corporate  stock,  and  practically 
controlled  the  board  of  directors.  The  court  held  in  this 
case  that  the  transfer  gave  jurisdiction  to  the  new  cor- 
poration to  sue,  despite  the  above  Supreme  Court  deci- 
sion. 

Colorable  Assertion  of  Federal  Question 

The  statute  also  applies  where  a  federal  question  has 
been  raised  for  the  mere  purpose  of  conferring  jurisdic- 
tion on  the  court — especially  when,  after  the  pleadings  are 
made  up,  it  is  patent  that  the  federal  question  is  imma- 
terial, and  that  the  case  will  turn  upon  other  questions.37 

Ill,  53  L.  Ed.  189;  Southern  Realty  Inv.  Co.  v.  Walker,  211  U.  S. 
603,  29  Sup.  Ct.  211,  53  L.  Ed.  346.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  316;  Cent.  Dig.  §  862. 

se  (C.  C.)  74  Fed.  849.  See,  also,  Slaughter  v.  Mallet  Land  &  Cattle 
Co.,  141  Fed.  282,  72  C.  C.  A.  430;  Acord  v.  Western  Poeahontas  Cor- 
poration (C.  C.)  156  Fed.  989;  Id.,  174  Fed.  1019,  98  C.  C.  A.  625. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  316;  Cent.  Dig.  §  862. 

37  Robinson  v.  Anderson,  121  TL  S.  522,  7  Sup.  Ct.  1011,  30  L.  Ed. 
1021;  Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  U.  S  282,  22 


§    108)  OEDINAEY   CIVIL  JURISDICTION  289 

Improper  Joinder  of  Parties 

The  statute  may  also  be  violated  by  an  improper  joinder 
of  parties  for  the  express  purpose  of  conferring  jurisdic- 
tion.38 For  instance,  a  suit  by  a  stockholder  against  a  cor- 
poration and  the  officers  of  the  corporation,  who  refuse  to 
assert  a  corporate  right — the  officers  being  joined  merely 
on  the  allegation  that  they  had  been  requested  to  assert 
the  right  and  had  refused — contravenes  the  statute.39 

In  equity  cases  this  is  also  covered  by  equity  rule  27, 
which  provides  as  follows:  "Every  bill  brought  by  one 
or  more  stockholders  in  a  corporation  against  the  corpo- 
ration and  other  parties,  founded  on  rights  which  may 
properly  be  asserted  by  the  corporation,  must  be  verified 
by  oath,  and  must  contain  an  allegation  that  the  plaintiff 
was  a  shareholder  at  the  time  of  the  transaction  of  which 
he  complains,  or  that  his  share  had  devolved  on  him  since 
by  operation  of  law,  and  that  the  suit  is  not  a  collusive 
one  to  confer  on  a  court  of  the  United  States  jurisdiction 
of  a  case  of  which  it  would  not  otherwise  have  cogni- 
zance. It  must  also  set  forth  with  particularity  the  efforts 
of  the  plaintiff  to  secure  such  action  as  he  desires  on  the 
part  of  the  managing  directors  or  trustees,  and,  if  neces- 
sary, of  the  shareholders,  and  the  causes  of  his  failure  to 
obtain  such  action,  or  the  reasons  for  not  making  such  ef- 
fort." 

However,  the  mere  fact  that  the  trustees  are  in  sym- 
pathy with  the  action  brought  by  the  stockholder  would 

Sup.  Ct.  681,  46  L.  Ed.  910.  As  somewhat  analogous,  see  Farrell  v. 
O'Brien,  199  U.  S.  89,  25  Sup.  Ct  727,  50  L.  Ed.  101.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  284;  Cent.  Dig.  §§  818-826. 

ss  Stephens  v.  Smatt  (C.  C.)  172  Fed.  466;  Williams  v.  City  Bank 
&  Trust  Co.,  186  Fed.  419,  108  C.  C.  A.  341.  The  dropping  of  a  plain- 
tiff from  a  bill  because  he  would  defeat  the  jurisdiction  does  not 
prove  collusion.  Mathieson  v.  Craven  (C.  C.)  164  Fed.  471.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  316;  Cent.  Dig.  §  862. 

3»  City  of  Detroit  v.  Dean,  106  U.  S.  537,  1  Sup.  Ct.  560,  27  L.  Ed. 
300.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  314,  316;  Cent.  Dig.  §§ 
860,  862. 

HUGHES  FED.PB.(2o  ED.) — 19 


290  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

not  defeat  the  jurisdiction,  nor  bring  them  within  this 
rule,  if  their  refusal  to  bring  suit  in  the  name  of  the  cor- 
poration was  actually  bona  fide,  and  based  on  grounds 
which  they  thought  sufficient.40 

Method  of  Attacking  Jurisdiction  under  This  Section 

Under  the  express  language  of  the  act,  lack  of  jurisdic- 
tion need  not  be  raised  by  the  pleadings,  though  it  would 
be  proper  to  do  so.  It  may  be  raised  at  any  time,  and  the 
court,  of  it  own  motion,  may  raise  it.41  The  statute,  how- 
ever, requires  that  the  want  of  jurisdiction  on  this  ground 
must  "appear  to  the  satisfaction  of  said  court."  Under 
this  clause  the  court  discourages  attempts  to  raise  the 
question  when  it  has  not  been  raised  by  the  pleadings,  and 
the  case  has  progressed  far  on  the  merits.  In  such  case 
the  party  raising  it  has  the  burden  of  proof  to  show  clearly 
that  the  statute  has  been  violated.42 


JURISDICTION  AS  INCIDENT  TO  OR  DERIVA- 
TIVE FROM  OTHER  GROUNDS  OF 
JURISDICTION 

109.  The  federal  courts  have  jurisdiction  in  a  large  class  of 
matters  on  the  ground  that  the  same  is  an  incident 
or  sequel  to  jurisdiction  already  acquired  under 
some  of  the  preceding  heads,  although  they  would 

40  Bowdoin  College  v.  Merritt  (C.  C.)  63  Fed.  213.     See,  also,  on 
this  general  subject,  Illinois  Cent  R.  Co.  v.  Adams,  180  U.  S.  28,  21 
Sup.  Ct.  251,  45  L.  Ed.  410 ;   City  of  Quincy  v.  Steel,  120  U.  S.  241,  7 
Sup.  Ct.  520,  30  L.  Ed.  624;    Simpson  v.  Union  Stock  Yards  Co.  (C. 
C.)  110  Fed.  799.     See  "Courts,"  Dec.  Dig.   (Key-No.)   §§  314,  316; 
Cent.  Dig.  §§  860,  862. 

41  MORRIS  v.  GILMER,  129  U.  S.  315.  9  Sup.  Ct.  289,  32  L.  Ed. 
690;  Lake  County  v.  Dudley,  173  U.   S.  243,  19  Sup.  Ct.  398,  43  L. 
Ed.  684.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  277;  Cent.  Dig.  §  818. 

42  Deputron  v.  Young,  134  U.  S.  241,  10  Sup.  Ct.  539,  33  L.  Ed. 
923 ;   Collins  v.  Ashland  (D.  C.)  112  Fed.  175 ;   Gaddie  v.  Mann  (C.  C.) 
147  Fed.  955.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  324;   Cent.  Dig. 
§§  882-884. 


§    109)  INCIDENTAL  JURISDICTION  291 

not  have  jurisdiction  of  such  matters  as  an  original 
proposition.  In  other  words,  in  these  ancillary  or 
incidental  proceedings  the  question  of  citizenship 
or  amount  involved  is  immaterial,  and  the  jurisdic- 
tion is  conferred  by  reason  of  the  principle  that  it 
is  necessary,  in  order  to  carry  out  the  objects  of 
the  main  case  and  give  complete  relief,  or  to  set- 
tle all  questions  necessarily  dependent  upon  the 
main  case.48 

A  common  branch  of  this  ancillary  jurisdiction  is  where 
some  additional  suit  is  brought  or  proceeding  instituted  to 
carry  out  the  object  of  the  main  litigation,  or  to  realize  its 
fruits.  For  instance,  in  Stewart  v.  Dunham,4*  which  was  a 
creditors'  bill  to  set  aside  an  alleged  fraudulent  conveyance, 
it  was  held  that  the  admission  of  additional  creditors  as  co- 
complainants  did  not  defeat  the  jurisdiction,  but  that  the 
court  had  power  to  consider  their  claims  independent  of 
their  citizenship  or  the  amount  involved. 

In  Gumbel  v.  Pitkin,45  attachments  had  issued  from  a 
United  States  court,  and  property  had  been  seized  thereun- 
der. Then  a  creditor  in  a  state  court  issued  an  attachment, 
and  placed  it  in  the  hands  of  .the  sheriff,  and  had  notice  of 
this  attachment  served  upon  the  marshal,  but  without  any 
seizure,  as  that  could  not  have  been  accomplished.  He 

43Compton  v.  Jesup,  68  Fed.  263,  15  C.  C.  A.  397;  Id.,  167  TJ.  S. 
1,  17  Sup.  Ct.  795,  42  L.  Ed.  55  (the  questions  discussed  in  the  Su- 
preme Court  opinion  are  not  in  point  on  this  special  question) ;  Peck 
v.  Elliott,  79  Fed.  10,  24  C.  C.  A.  425,  38  L.  R.  A.  616 ;  Hill  v.  Kuhl- 
man,  87  Fed.  498,  31  C.  C.  A.  87;  Brun  v.  Mann,  151  Fed.  145,  80 
C.  C.  513,  12  L.  R.  A.  (N.  S.)  154;  Hobbs  Mfg.  Co.  v.  Gooding  (C. 
C.)  164  Fed.  91.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264;  Cent.  Dig. 
§  801. 

44  115  U.  S.  61,  5  Sup.  Ct.  1163,  29  L.  Ed.  329.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  264;   Cent.  Dig.  §  801. 

45  124  U.  S.  131,  8  Sup.  Ct.  379,  31  L.  Ed.  374.     See,  also,  as  to 
suits  to  enforce  an  attachment  lien,  Hatcher  v.  Hendrie  &  Bolthoff 
Mfg.  &  Supply  Co.,  133  Fed.  267,  68  C.  C.  A.  19.    See  "Courts,"  Dec. 
Din.  (Key-No.)  §§  264,  498;   Cent.  Dig.  §§  801,  1387. 


292  DISTRICT    COURT— ORIGINAL   JURISDICTION         (Ch.  13 

then  asked  leave  to  intervene  in  the  federal  court  case,  and 
he  was  allowed  to  do  so  (though  he  was  not  a  party  to  the 
first  litigation),  on  the  ground  that  his  proceeding  was  a  de- 
pendent bill ;  that  he  was  obliged  to  come  into  the  federal 
court,  because  he  could  really  go  nowhere  else;  and  that 
the  court  having  jurisdiction  of  the  main  case  had  jurisdic- 
tion to  pass  upon  all  questions  incidentally  involved.  From 
this  it  appears  that  a  bill  may  be  ancillary  or  dependent 
though  the  parties  may  be  different  from  the  parties  in  the 
first  suit. 

In  Root  v.  Woolworth  *6  a  decree  had  been  entered  set- 
tling the  title  to  land,  and  a  conveyance  by  a  commissioner 
of  court  had  been  made  in  pursuance  of  that  decree.  The 
defendant  in  the  first  case  disregarded  the  decree,  and  still 
asserted  title  to  the  land.  It  was  held  that  a  bill  would 
lie  by  an  assignee  of  the  first  plaintiff  to  enjoin  the  defend- 
ant from  such  assertion  of  title,  and  that  such  bill  was  sup- 
plemental and  ancillary. 

In  White  v.  Ewing  47  the  assets  of  a  corporation  were  be- 
ing administered  by  a  court.  The  receiver  brought  a  num- 
ber of  claims  against  different  debtors  to  the  corporation  all 
in  one  proceeding,  many  of  whom  owed  less  than  two  thou- 
sand dollars.  There  was  no  demurrer  as  to  the  joinder  of 
all  of  these  defendants  in  one  proceeding.  It  was  held  that 
the  court  had  jurisdiction  of  these  proceedings,  as  ancillary 
to*  the  main  suit,  whether  or  not  it  had  jurisdiction  of  them 
as  independent  proceedings. 

*«  150  U.  S.  401,  14  Sup.  Ct.  136,  37  L.  Ed.  1123.  But  not  a  bill  to 
distribute  the  proceeds  of  a  sale  of  lands  recovered  from  the  United 
States  among  the  parties  entitled,  in  pursuance  of  a  private  agree- 
ment of  sale  among  them.  Stillman  v.  Combe,  197  U.  S.  436,  25  Sup. 
Ct.  480,  49  L.  Ed.  822.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264; 
Cent.  Dig.  §  801. 

47  159  u.  S.  36,  15  Sup.  Ct  1018,  40  L.  Ed.  67.  See,  as  analogous, 
Gundy  v.  Armstrong,  133  Fed.  417,  66  C.  C.  A.  627 ;  Brown  v.  Alle- 
bach  (C.  C.)  156  Fed.  697.,  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  26$; 
Cent.  Dig.  §  801. 


§    109)  INCIDENTAL  JURISDICTION  293 

In  New  Orleans  v.  Fisher  *8  a  judgment  creditor  of  New 
Orleans  filed  a  bill  against  the  school  board  of  that  city  to 
force  an  accounting  of  the  collections  of  school  taxes.  Ju- 
risdiction was  sustained  as  ancillary  to  the  enforcement  of 
the  main  judgment  which  had  been  obtained  in  the  United 
States  court,  though  the  school  board  was  not  a  party  to 
the  first  litigation. 

In  Phelps  v.  Mutual  Reserve  Fund  Life  Ass'n  49  there 
was  a  proceeding  in  a  state  court  against  a  nonresident  in- 
surance company,  against  whom  judgment  had  been  obtain- 
ed, which  looked  to  the  appointment  of  a  receiver  and  im- 
pounding premiums  due  it.  This  suit  was  removed  into 
the  federal  court,  where  it  was  held  that  it  was  ancillary 
to  the  main  suit,  and  sustainable  on  that  ground. 

Under  this  principle  the  court,  having  obtained  jurisdic- 
tion in  the  main  cause,  has  the  right  to  consider  any  inci- 
dental questions  arising  thereunder,  or  brought  to  its  at- 
tention by  petition  or  otherwise,  which  are  naturally  con- 
nected with  the  main  litigation,  as  in  this  way  complete 
and  speedy  justice  can  best  be  done. 

In  Blake  v.  Pine  Mountain  Iron  &  Coal  Company  50  it 
was  decided  that,  when  property  was  in  charge  of  a  receiv- 
er of  a  federal  court,  it  could  consider  the  claims  of  all  par- 
ties thereby  affected  or  interested  in  the  property,  regard- 
less of  the  grounds  of  jurisdiction  in  the  main  case,  as  this 
was  necessarily  incidental  to  the  main  case. 

In  Central  Trust  Co.  v.  Benedict 61  a  trust  company  held 

48  180  U.  S.  185,  21  Sup.  Ct.  347,  45  L.  Ed.  485.  See,  also,  Preston 
v.  Calloway,  183  Fed.  19,  105  C.  C.  A.  311;  Brown  v.  Morgan  (C.  C.) 
163  Fed.  395.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264;  Gent.  Dig.  § 
801. 

*»  112  Fed.  453,  50  C.  C.  A.  339,  61  L.  R.  A.  717;  Mutual  Reserve 
Fund  Life  Ass'n  v.  Phelps,  190  U.  S.  147,  23  Sup.  Ct  707,  47  L.  Ed. 
987.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264;  Cent.  Dig.  §  801. 

so  76  Fed.  624,  22  C.  C.  A.  430.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§§  264,  501;  Cent.  Dig.  §§  801,  1409. 

51  78  Fed.  198,  24  C.  C.  A.  56.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  264;  Cent.  Dig.  §  801. 


294  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

a  certain  fund  as  custodian.  In  a  foreclosure  receivership 
suit  it  was  held  that  the  court  could  consider  the  petition 
of  the  trustee  for  compensation  out  of  that  fund  as  an  in- 
cident to  the  main  cause. 

In  Central  Trust  Co.  v.  Bridges  52  a  suit  for  foreclosure 
was  pending.  The  court  permitted  parties  who  claimed 
mechanics'  liens  to  come  in  by  petition,  and  decided  that  it 
had  the  right  to  consider  their  claims  as  ancillary  to  the 
main  litigation. 

In  Jenks  v.  Brewster  53  a  suit  to  construe  and  enforce  a 
decree  of  a  federal  court  was  held  to  be  ancillary  to  the 
main  suit. 

Under  this  principle  the  court  may  protect  property  un- 
der its  control  from  proceedings  by  adverse  claimants.  It 
has  been  seen  from  the  above  cases  that  such  adverse  claim- 
ants have  the  right  to  come  into  the  federal  court  for  relief. 
The  court,  however,  could  not  only  give  them  the  right  to 
intervene,  but  can  compel  them  to  do  so  if  they  attempt  in 
any  way  to  interfere  with  the  property  under  its  control, 
and  this  applies  to  a  claim  for  taxes  by  a  state  against  the 
property.64 

The  court,  under  this  principle,  can  take  jurisdiction  of  a 
suit  on  an  attachment  bond  given  in  the  main  proceeding. 
Independent  of  this  principle  of  ancillary  process,  such  a 
suit  would  naturally  involve  a  federal  question ;  but,  if  this 
principle  alone  could  be  applied  to  sustain  jurisdiction,  then 
the  amount  involved  would  have  to  be  three  thousand  dol- 
lars. If,  however,  such  proceedings  are  sustainable  on  the 


52  57  Fed.  753,  6  C.  C.  A.  539.    See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  264;   Cent.  Dig.  §  801. 

53  (C.  C.)  96  Fed.  625.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264; 
Cent.  Dig.  §  801. 

s  *  Memphis  Sav.  Bank  v.  Houchens,  115  Fed.  96,  52  C.  C.  A.  176; 
Ex  parte  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  785,  37  L.  Ed.  689.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  264,  500;  Cent.  Dig.  §§  801,  1407, 
1408- 


§   109)  INCIDENTAL  JURISDICTION  295 

ground  that  they  are  ancillary,  these  other  requisites  of  ju- 
risdiction which  apply  to  the  main  suit  do  not  apply.55 

One  of  the  most  common  and  useful  grounds  of  ancillary 
jurisdiction  in  the  federal  courts  is  the  case  where  property 
which  extends  into  more  than  one  district,  or  even  into 
more  than  one  state,  comes  into  the  possession  of  the  fed- 
eral court  for  purposes  of  administration.  The  best  known 
instances  of  these  proceedings  are  those  of  railroads  whose 
lines  run  through  different  states  or  districts.  A  great  ad- 
vantage of  the  federal  courts,  which  has  led  to  these  suits 
being  in  a  great  majority  of  cases  brought  there,  is  this 
very  fact — that,  when  one  federal  court  takes  jurisdiction 
of  such  a  proceeding,  ancillary  proceedings  can  be  filed  in 
every  other  district  or  state  where  the  defendant  may  have 
property.  In  such  case  one  district  is  treated  as  the  main 
district.  The  orders  and  various  steps  in  the  proceeding 
are  taken  in  that  district,  and  the  judges  in  the  other  dis- 
tricts do  little  more  than  merely  register  the  decrees  of  the 
first  district.  It  is  a  well-settled  practice  in  such  case  that 
the  claims  against  the  defendant  should  be  asserted  in  the 
main  case,  and  not  in  the  ancillary  district.56 

This  matter  has  been  greatly  facilitated  in  the  Judicial 
Code  by  adding  a  section  (section  56)  giving  to  a  receiver 
appointed  and  qualifying  in  one  district  jurisdiction  over 
all  property  involved  in  the  suit  and  situated  in  the  circuit, 
on  filing  in  the  other  district  courts  a  copy  of  the  bill  on 
which  he  was  appointed  and  the  order  of  appointment. 
Prior  to  this  provision  a  receiver  had  no  extra-territorial 
powers.57 


55  Files  v.  Davis  (C.  C.)  118  Fed.  465.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  264;  Cent.  Dig.  §  801. 

SB  Central  Trust  Co.  v.  East  Tennessee,  V.  &  G.  R.  Co.  (C.  C.)  30 
Fed.  895;  Central  Trust  Co.  of  New  York  v.  United  States  Flour 
Milling  Co.  (C.  C.)  112  Fed.  371.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
263;  Cent.  Dig.  §§  799,  800. 

57  Strout  v.  United  Shoe  Machinery  Co.  (D.  C.)  195  Fed.  313.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  264;  Cent.  Dig.  §  801. 


296  DISTRICT    COURT ORIGINAL   JURISDICTION        (Ch.  13 

It  is  largely  a  question  of  convenience  which  should  be 
selected  as  the  main  district  in  the  first  instance.  As  a  rule 
the  best  district  to  select  is  the  district  of  the  defendant's 
principal  office;  but  where  suit  is  first  brought  in  another 
district,  and  the  defendant  company  has  appeared,  or  legal 
service  has  been  obtained  upon  it,  that  may  be  treated  as 
the  main  district.68 

Mandamus  Proceedings 

The  writ  of  mandamus  in  the  federal  courts  is  not  an 
original  proceeding  at  law  or  in  equity,  and  therefore  the 
courts  have  no  jurisdiction  in  proceedings  of  that  nature  as 
original  proceedings.69 

In  these  courts  mandamus  is  a  dependent  or  ancillary 
proceeding,  and  can  be  used  only  when  the  court  has  al- 
ready acquired  jurisdiction  in  the  main  case  on  some  well- 
established  ground  of  federal  jurisdiction.  But  its  use  in 
this  way  in  the  nature  of  a  writ  of  execution,  or  a  writ  to 
effectuate  the  relief  granted  in  the  main  suit,  is  quite  com- 
mon. For  instance,  in  Labette  County  Com'rs  v.  U.  S.,60 
where  judgment  had  been  obtained  in  a  federal  court  against 
a  township,  a  mandamus  proceeding  against  the  officers 
charged  with  the  duty  of  satisfying  such  judgment  was 
sustained  to  enforce  the  judgment,  on  the  ground  that  it 
was  such  an  ancillary  proceeding,  though  the  parties  de- 
fendant to  the  writ  were  not  parties  to  the  original  suit. 

58  Farmers'  Loan  &  Trust  Co.  v.  Northern  Pac.  R.  Co.  (C.  C.)  72 
Fed.  26.  In  this  important  suit  the  judges  of  the  different  circuits 
met,  conferred,  and  agreed  upon  a  uniform  decree.  See  "Courts" 
Dec.  Dig.  (Key-No.)  §  268;  Cent.  Dig.  §§  806-812. 

6»  ROSENBAUM  v.  BAUER,  120  U.  S.  450,  7  Sup.  Ct.  633,  30  L. 
Ed.  743;  State  of  Indiana  v.  Lake  Erie  &  W.  R.  Co.  (C.  C.)  85  Fed. 
1 ;  In  re  Winn,  213  U.  S.  458,  29  Sup.  Ct.  515,  53  L.  Ed.  873.  Under 
the  tenth  section  of  the  interstate  commerce  act  (Act  March  2,  1889, 
c.  382,  25  Stat.  855  [U.  S.  Comp.  St.  1901,  p.  3172]),  it  is  authorized  as 
an  independent  proceeding.  Baltimore  &  O.  R.  Co.  v.  United  States 
ex  rel.  Pitcairn  Coal  Co.,  215  U.  S.  481,  30  Sup.  Ct.  164,  54  L.  Ed. 
292.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  265;  Cent.  Dig.  §  803. 

eo  112  U.  S.  217,  5  Sup.  Ct.  108,  28  L.  Ed.  698.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  264,  265;  Cent.  Dig.  §§  801,  803. 


§    109)  INCIDENTAL  JURISDICTION  297 

In  Hair  v.  Burnell  61  the  judgment  had  been  obtained  in 
a  federal  court  against  a  stockholder  of  a  corporation,  and 
his  stock  had  been  garnished  through  the  corporation,  and 
sold  under  execution.  The  court  sustained  a  mandamus  by 
the  purchaser  of  the  stock  against  the  corporation  to  com- 
pel its  transfer  on  the  books  to  the  purchaser. 

In  Board  of  Liquidation  of  City  of  New  Orleans  v.  U. 
S.62  a  proceeding  by  mandamus  against  the  board  of  liqui- 
dation to  enforce  a  federal  judgment  against  the  city  was 
sustained,  though  the  board  itself,  as  a  corporation,  was  not 
a  party  to  the  original  suit. 

Scire  Facias 

The  federal  courts  have  jurisdiction  of  a  scire  facias  not 
only  by  virtue  of  section  716,  but  also  because  this,  too,  is 
considered  an  ancillary  or  dependent  proceeding.  For  in- 
stance, in  Pullman's  Palace  Car  Co.  v.  Washburn 63  such 
a  proceeding  was  sustained,  which  was  instituted  to  en- 
force liability  for  costs  obtained  on  a  judgment  in  the  fed- 
eral court. 

So,  too,  in  Lafayette  County,  Mo.,  v.  Wonderly  64  a  scire 
facias  to  revive  a  personal  judgment  of  the  federal  courts 
was  sustained  as  an  ancillary  proceeding. 

A  common  class  of  ancillary  proceedings  is  those  insti- 
tuted for  the  purpose  of  seeking  protection  against  the  orig- 
inal suit  on  grounds  which  could  not  have  been  raised  in 
such  suit.  The  best-known  class  of  this  jurisdiction  is  bills 
to  enjoin  judgments  obtained  in  federal  courts.  The  only 

«i  (C.  C.)  106  Fed.  280.  See  "Courts,"  Dec.  Dig.  (Key-No)  §§  264, 
265;  Cent.  Dig.  §§  801,  803. 

62 108  Fed.  689,  47  C.  C.  A.  587.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§§  264,  265;  Cent.  Dig.  §§  801,  SOS. 

63  (C.  C.)  66  Fed.  790;  Washburn  v.  Pullman's  Palace-Car  Co.,  76 
Fed.  1005,  21  C.  C.  A.  598.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264; 
Cent.  Dig.  §  801. 

6*92  Fed.  313,  34  C.  C.  A.  360;  Collin  County  Nat.  Bank  of  Mc- 
Kinney,  Tex.,  v.  Hughes,  152  Fed.  414,  81  C.  C.  A.  556;  Id.,  155  Fed. 
389,  83  C.  C.  A.  661 ;  Egan  v.  Chicago  G.  W.  R.  Co.  (C.  C.)  163  Fed. 
344.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264;  Gent.  Dig.  §  801. 


298  DISTRICT    COURT ORIGINAL   JURISDICTION         (Ch.  13 

remedy  against  such  judgments  is  in  the  federal  courts,  and 
hence  such  bills  are  sustainable,  and  are  considered  ancil- 
lary.65 

The  same  principle  applies  to  bills  to  enjoin  suits  which 
have  not  proceeded  to  judgment.  The  federal  courts  have 
jurisdiction  of  such  proceedings — in  fact,  they  are  the  only 
courts  which  would  have  such  jurisdiction,  as  state  courts 
cannot  enjoin  proceedings  in  federal  courts.  For  instance, 
in  Bradshaw  v.  Miners'  Bank  ee  a  bill  to  enjoin  the  prosecu- 
tion of  a  creditors'  suit  was  held  ancillary  to  the  main  suit, 
and  sustainable  on  that  ground. 

In  Virginia-Carolina  Chemical  Co.  v.  Home  Ins.  Co.6T 
the  insured  had  brought  separate  actions  against  many  in- 
surance companies,  who  had  separate  policies  which  pro- 
vided that  the  companies  should  be  liable  only  for  their 
proportionate  share  of  the  loss.  It  was  held  that  a  bill  to 
adjust  the  equities  of  the  insurance  companies  as  among 
themselves  and  against  the  insured,  and  to  enjoin  the  pros- 
ecution of  the  common-law  suits,  would  lie  as  ancillary  to 
the  main  suit. 

The  same  principle  applies  to  suits  to  set  aside  decrees 
or  to  construe  them.68 

In  Milwaukee  &  M.  R.  Co.  v.  Milwaukee  &  St.  P.  R.  Co.68 
the  court,  in  defining  these  ancillary  suits,  is  careful  to  call 
attention  to  the  fact  that  they  may  be  ancillary  in  the  fed- 
eral courts,  though,  under  the  common-law  rules  of  proce- 
ss Jones  v.  Andrews,  10  Wall.  327,  19  L.  Ed.  935;  Loy  v.  Alston, 
172  Fed.  90,  96  C.  C.  A.  578.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
264;  Cent.  Dig.  §  801. 

ee  81  Fed.  902,  26  C.  C.  A.  673.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  264;  Cent.  Dig.  §  801. 

er  113  Fed.  1,  51  C.  C.  A.  21.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  264;  Cent.  Dig.  §  801. 

es  Milwaukee  &  M.  R.  Co.  v.  Milwaukee  &  St.  P.  R.  Co.,  2  Wall. 
609,  17  L.  Ed.  886;  Pacific  R.  Co.  v.  Missouri  Pac.  R.  Co.,  Ill  U.  S. 
505,  4  Sup.  Ct.  583,  28  L.  Ed.  498.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  264;  Cent.  Dig.  §  801. 

6»  2  Wall.  609,  17  L.  Ed.  886.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  264;  Cent.  Dig.  §  801. 


§    109)  INCIDENTAL  JURISDICTION  299 

dure,  they  would  be  treated  as  original.  It  says :  "But  we 
think  that  the  question  is  not  whether  the  proceeding  is 
supplemental  and  ancillary,  or  is  independent  and  original, 
in  the  sense  of  the  rules  of  equity  pleading,  but  whether  it 
is  supplemental  and  ancillary,  or  is  to  be  considered  entire- 
ly new  and  original,  in  the  sense  which  this  court  has  sanc- 
tioned with  reference  to  the  line  which  divides  the  juris- 
diction of  the  federal  courts  from  that  of  the  state  courts. 
No  one,  for  instance,  would  hesitate  to  say  that,  according 
to  the  English  chancery  practice,  a  bill  to  enjoin  a  judg- 
ment at  law  is  an  original  bill,  in  the  chancery  sense  of 
the  word.  Yet  this  court  has  decided  many  times  that, 
when  a  bill  is  filed  in  the  circuit  court  to  enjoin  a  judg- 
ment of  that  court,  it  is  not  to  be  considered  as  an  original 
bill,  but  as  a  continuation  of  the  proceeding  at  law — so 
much  so  that  the  court  will  proceed  in  the  injunction  suit 
without  actual  service  of  subpoena  on  the  defendant,  and 
though  he  be  a  citizen  of  another  state,  if  he  were  a  party 
to  the  judgment  at  law.  The  case  before  us  is  analogous. 
An  unjust  advantage  has  been  obtained  by  one  party  over 
another  by  a  perversion  and  abuse  of  the  orders  of  the 
court,  and  the  party  injured  comes  now  to  the  same  court 
to  have  this  abuse  corrected,  and  to  carry  into  effect  the 
real  intention  and  decree  of  the  court,  and  that  while  the 
property  which  is  the  subject  of  contest  is  still  within  the 
control  of  the  court,  and  subject  to  its  order." 

Cross-Bills 

Another  common  procedure  sustainable  under  this  prin- 
ciple of  ancillary  jurisdiction  is  the  case  of  cross-bills,  which 
are  treated  as  ancillary,  and  therefore  within  the  jurisdic- 
tion of  the  court,  when  they  relate  to  the  same  subject- 
matter  as  the  original  or  main  litigation.70 

TO  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Texas  Cent.  R.  Co.,  137  TJ.  S. 
171,  11  Sup.  Ct.  61,  34  L.  Ed.  625;  Everett  v.  Independent  School 
Dist  of  Rock  Rapids  (C.  C.)  102  Fed.  529;  Rickey  Land  &  Cattle  Co. 
v.  Miller  &  Lux,  218  U.  S.  238,  31  Sup.  Ct.  11,  54  L.  Ed.  1032 ;  Fed- 


300  DISTRICT   COURT ORIGINAL   JURISDICTION         (Ch.  13 

Under  the  inherent  power  of  the  court  to  prevent  its  pro- 
cess from  being  used,  either  fraudulently  or  otherwise,  in 
such  manner  as  to  cause  oppression,  or  to  deprive  any  one 
of  his  rights,  proceedings  to  settle  adverse  claims  to  prop- 
erty, either  by  asserting  title  or  by  questioning  the  proceed- 
ings in  the  main  case,  are  sustainable  as  ancillary  and  de- 
pendent. 

In  Krippendorf  v.  Hyde  71  the  marshal  had  attached  the 
property  of  a  third'  party  as  belonging  to  the  defendant. 
This  third  party  was  allowed  to  intervene  for  the  purpose 
of  securing  relief,  and  this  proceeding  was  treated  as  ancil- 
lary, and  justified  by  the  inherent  power  of  the  court  to 
prevent  its  process  from  being  oppressively  used. 

eral  Mining  &  Smelting  Co.  v.  Bunker  Hill  &  Sullivan  Mining  &  Con- 
centrating Co.  (C.  C.)  187  Fed.  474.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  264;  Cent.  Dig.  §  801. 

7i  110  U.  S.  276,  4  Sup.  Ct.  27,  28  L.  Ed.  145;  Broadis  v.  Broadis 
(C.  C.)  86  Fed.  951.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  264;  Cent. 
Dig.  §  801. 


§    110)      DISTRICT  COURT — JURISDICTION   BY   REMOVAL  301 


CHAPTER  XIV 

THE    DISTRICT    COURT    (Continued)— JURISDICTION    BY    RE- 
MOVAL 

110.  Removals  from  State  Courts — Purpose  of  Such  Jurisdiction. 

111.  Nature  of  the  Right— How  Far  Waivable. 

112.  Scope  of  the  Jurisdiction. 

113.  Federal  Questions. 

114.  Suits  by  the  United  States. 


REMOVALS   FROM   STATE   COURTS— PURPOSE 
OF  SUCH  JURISDICTION 

110.  The  purpose  of  the  federal  jurisdiction  by  removal 
from  state  courts  in  certain  cases,  principally  of 
diverse  citizenship  and  federal  questions,  is  that 
in  the  former  local  influence  and  prejudice  may  be 
avoided;  and  in  the  latter  the  right  to  have  the 
federal  courts  pass  upon  such  questions  is  essen- 
tial to  the  proper  administration  of  federal  laws.1 

The  class  of  jurisdiction  of  the  district  courts  by  re- 
moval from  other  courts  is  practically  as  extensive  as  its 
jurisdiction  over  cases  originally  instituted  there. 

In  discussing  the  original  jurisdiction,  it  has  been  seen 
that  these  cases  may  originally  be  brought  in  the  federal 
court.  Where  the  parties  asserting  a  federal  right  or  re- 
siding outside  of  a  state  are  plaintiffs,  this  provision  is 
sufficient  for  their  protection;  but  it  was  necessary  to  pro- 
vide, also,  for  those  cases  where  the  nonresident  was  a  de- 
fendant, or  where  the  federal  question  asserted  in  a  state 
court  could  be  removed  by  the  party  against  whom  it  was 
asserted.  Hence  the  provision  allowing  the  removal  of 
cases  from  state  courts  into  the  federal  courts.  The  con- 

i  Federalist,  No.  80. 


302  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  14: 

stitutional  right  of  Congress  to  provide  not  only  for  giv- 
ing the  federal  courts  original  cognizance  of  such  cases, 
but  also  for  giving  the  right  of  removal,  is  settled.2 

The  provisions  for  removal  of  cases,  however,  elaborate 
as  they  are,  fall  far  short  of  the  constitutional  powers  of 
Congress.  There  are  many  cases  involving  federal  ques- 
tions, or  involving  controversies  between  citizens  of  dif- 
ferent states,  which  cannot  be  removed  into  the  federal 
courts.  It  is  true,  as  will  be  seen  hereafter,  that  in  some 
of  these  cases  a  writ  of  error  can  be  taken  from  the  state 
court  of  last  resort  to  the  Supreme  Court  of  the  United 
States,  where  a  federal  question  is  involved,  but  this  does 
not  by  any  means  exhaust  the  possibilities  of  such  cases. 
Where  a  right  arising  under  the  Constitution  and  laws  of 
the  United  States  is  asserted  in  a  state  court,  and  decided 
in  favor  of  the  right  in  the  state  court,  such  writs  of  error 
do  not  lie;  and  there  are  many  questions  where  the  con- 
struction of  the  Constitution  or  an  act  of  Congress  may  be 
involved  in  a  state  court  over  which  no  federal  court  has 
any  supervision. 

For  instance,  it  will  appear  in  the  sequel  that  cases  can- 
not be  removed  on  the  ground  of  a  federal  question  being 
involved  unless  that  fact  appears  from  the  plaintiff's  own 
pleading,  and  cannot  be  taken  by  writ  of  error  from  a  state 
court  to  the  United  States  Supreme  Court  unless  an  ad- 
verse decision  to  the  federal  right  is  rendered.  In  addi- 
tion the  right  of  removal  is  limited  by  the  amount  involved 
and  by  the  character  of  the  proceeding. 

2  Tennessee  v.  Davis,  100  TJ.  S.  257,  25  L.  Ed.  648.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dip.  §  3. 


§    111)  NATURE   OF  THE   BIGHT  303 


NATURE  OF  THE  RIGHT— HOW  FAR  WAIVABLE 

111.  This  right  to  remove  cases  is  purely  statutory,  and,  as 
in  similar  cases  of  original  suits,  cannot  be  con- 
ferred by  consent,  but  the  parties  must  show  com- 
pliance with  the  statute  and  the  jurisdictional 
facts.3 

But  while  consent  cannot  give  this  right,  consent  can 
waive  it  in  special  cases,  and  not  only  consent,  but 
such  acts  equivalent  to  consent  as  may  be  consid- 
ered a  waiver,  and  as  would  equitably  estop  a 
party  from  attempting  to  remove  his  case.* 

In  West  Virginia  v.  King  5  a  defendant  applied  to  a  state 
court  for  removal  of  a  case,  and  the  court  refused  his  peti- 
tion. He  thereafter  asked  for  an  amendment  of  his  plead- 
ings, which  was  allowed  by  the  court,  and  applied  to  the 
state  court  of  appeals  for  a  writ  of  prohibition  designed  to 
give  the  case  in  the  state  court  a  certain  shape  to  his  ad- 
vantage. It  was  held  that  this  action  of  his  was  a  waiver 
of  his  right  to  remove. 

It  is  difficult  to  understand,  however,  how,  after  a  pe- 
tition has  been  filed  and  refused,  and  proper  exceptions  tak- 
en, any  steps  in  the  state  court  looking  to  setting  up  the 
best  defense  thereto  can  be  considered  a  waiver.  The  Su- 
preme Court  has  frequently  decided  that,  after  a  petition  to 
remove  has  been  refused,  the  party  may  go  on  and  resist 

s  Kingsbury  v.  Kingsbury,  Fed.  Gas.  No.  7,817 ;  Byers  v.  McAuley, 
149  U.  S.  608,  13  Sup.  Ct.  906,  37  L.  Ed.  867.  Bee  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §  6. 

*  Hanover  Nat.  Bank  v.  Smith,  Fed.  Cas.  No.  6,035 ;  Case  v.  Olney 
(C.  C.)  106  Fed.  433.  Compare  Atlanta,  K.  &  N.  Ry.  Co.  v.  Southern 
R.  Co.,  131  Fed.  657,  66  X3.  C.  A.  601.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  IT;  Cent.  Dig.  §  10;  "Courts,"  Cent.  Dig.  §  150. 

e  (C.  C.)  112  Fed.  369.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  11;  Cent.  Dig.  §  10;  "Courts,"  Cent.  Dig.  §  150. 


304  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  14 

the  case  in  the  state  court,  or  prosecute  it  in  the  federal 
court  and  disregard  the  state  court,  or  do  both.6 

But  it  is  not  a  waiver  of  the  right  to  remove,  where  a 
nonresident  defendant  enters  a  special  appearance  in  a 
state  court,  and  asks  to  set  aside  a  judgment  against  him 
for  want  of  service,  and  takes  a  bill  of  exceptions  to  the 
refusal  of  the  court  to  do  so.7 

Nor  is  it  a  waiver  of  the  right  to  remove  to  give  an  at- 
tachment bond  in  the  state  court  in  order  to  release  prop- 
erty from  attachment.8 

But  if  the  petitioner  invokes  affirmative  relief  in  the 
state  court,  instead  of  simply  standing  on  his  defense,  he 
waives  his  right  of  removal,  as  he  cannot  invoke  a  juris- 
diction and  afterwards  deny  it.9 

Although  a  defendant  in  a  particular  case  can  waive  his 
right  to  remove,  either  by  express  consent  or  by  acts 
equivalent  thereto,  he  cannot  agree  generally  not  to  re- 
move cases  to  the  federal  courts,  nor  can  a  state  statute 
require  such  an  agreement,  as  it  would  be  in  fraud  of  the 
jurisdiction  of  the  courts.  This  question  has  come  up  fre- 
quently in  cases  where  state  legislatures  attempt  to  im- 
pose on  foreign  corporations,  as  a  condition  of  allowing 
them  to  do  business  in  the  state,  an  agreement  that  they 
would  not  remove  their  cases  to  the  federal  courts. 

«  Chesapeake  &  O.  R.  Co.  v.  McCabe,  213  TJ.  S.  207,  29  Sup.  Ct. 
430,  53  L.  Ed.  765 ;  Avent  v.  Deep  River  Lumber  Co.  (C.  C.)  174  Fed. 
298.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  17;  Cent.  Dig. 
§  10;  "Courts,"  Cent.  Dig.  §  150. 

7  Baumgardner  v.  Bono  Fertilizer  Co.  (C.  C.)  58  Fed.  1.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  17;  Cent.  Dig.  §  10; 
"Courts,"  Cent.  Dig.  §  150. 

s  Purdy  v.  Wallace,  Muller  &  Co.  (C.  C.)  81  Fed.  513.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  17;  Cent.  Dig.  §  10; 
"Courts,"  Cent.  Dig.  §  150. 

»  Merchants'  Heat  &  Light  Co.  v.  James  B.  Clow  &  Sons,  204  U. 
S.  286,  27  Sup.  Ct.  285,  51  L.  Ed.  488 ;  Texas  &  P.  R.  Co.  v.  Eastin  & 
Knox,  214  U.  S.  153,  29  Sup.  Ct.  564,  53  L.  Ed.  946.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  17;  Cent.  Dig.  §  10;  "Courts,"  Cent. 
Dig.  §  150. 


§    111)  NATURE   OF  THE   BIGHT  305 

In  Doyle  v.  Continental  Ins.  Co.10  there  are  expressions 
in  the  opinion  which  imply  that  a  state  legislature  could 
direct  its  officers  to  revoke  a  license  granted  to  a  foreign 
corporation  if  a  foreign  corporation  removed  a  case,  on 
the  ground  that  the  state,  having  the  right  to  refuse  the 
privilege  of  doing  business  entirely  to  a  corporation,  could 
not  have  its  action  or  instructions  to  its  own  officers  in- 
quired into. 

But  in  the  later  case  of  Barron  v.  Burnside  "  the  Su- 
preme Court  explained  that  the  only  question  decided  in 
the  above  case  was  that  an  injunction  would  not  lie  against 
a  state  officer  to  prevent  him  from  revoking  such  a  license, 
and  that  a  provision  in  a  state  statute  requiring  such  an 
agreement  from  a  foreign  corporation  was  absolutely 
void.12 

But  while  state  statutes  cannot  require  an  agreement  not 
to  remove  as  a  condition  of  doing  business  in  the  state, 
they  may  provide  that  a  foreign  corporation  which  re- 
moves a  case  shall  forfeit  any  right  to  continue  business 
in  the  state,  provided  that  no  property  rights  have  vested, 
and  provided  further  that  other  constitutional  provisions 
are  not  violated  by  the  statute.13 

On  the  same  principle,  a  state  cannot  limit  to  its  own 
courts  the  enforcement  of  a  controversy  of  which  Congress 
has  given  the  federal  courts  jurisdiction.  If  the  contro- 


1094  u.  S.  535,  24  L.  Ed.  148.  See  "Removal  of  Causes,"  Dec,  Dig. 
(Key-No.)  §  3;  Cent.  Dig.  §§  4,  5. 

11 121  U.  S.  186,  7  Sup.  Ct.  931,  30  L.  Ed.  915.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  S;  Cent.  Dig.  §§  4,  5;  "Corporations," 
Cent.  Dig.  §  2506. 

12  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct.  44,  36 
L.  Ed.  942.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  3;  Cent. 
Dig.  §§  4,  5. 

is  Security  Mut.  Life  Ins.  Co.  v.  Prewitt,  202  U.  S.  246,  26  Sup.  Ct. 
G19,  50  L.  Ed.  1013,  6  Ann.  Cas.  317;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Swanger  (C.  C.)  157  Fed.  783;  Herndon  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  218  U.  S.  135,  50  Sup.  Ct.  633,  54  L.  Ed.  970.  See  "Corpora- 
tions," Dec.  Dig.  (Key-No.)  §  651;  Cent.  Dig.  §  2506. 
HUGHES  FED.PB.(2o  ED.) — 20 


306  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  14 

versy  is  such  as  can  be  constitutionally  conferred  on  the 
federal  courts  by  Congress,  and  if  it  has  been  so  conferred, 
then  the  act  of  the  state  in  giving  its  own  courts  jurisdic- 
tion of  itself  gives  the  federal  courts  jurisdiction  over  it. 
For  instance,  in  Lincoln  Co.  v.  Luning 14  a  state  statute 
gave  the  right  to  sue  a  county  simply  in  the  state  courts. 
It  was  held  that  a  nonresident  could  bring  a  suit  against 
the  county  in  the  federal  courts. 

In  George  T.  Smith  Middlings  Purifier  Co.  v.  McGro- 
arty  15  the  state  statute  limited  the  procedure  to  its  pro- 
bate courts.  The  Supreme  Court,  considering  that  the  ques- 
tion involved  was  not  a  mere  probate  proceeding,  but  a  con- 
troversy between  citizens  of  different  states,  held  that  it 
could  be  originally  brought  in  the  federal  courts. 

The  above  cases  were  both  cases  of  original  suits  in  the 
federal  courts.  Clark  v.  Bever  ie  was  a  case  where  a  de- 
cedent's estate  was  being  settled  in  a  probate  proceeding, 
but  there  was  a  controversy  between  citizens  of  different 
states  as  to  their  rights  in  these  probate  proceedings.  The 
court  held  that  such  a  controversy  could  be  removed  into 
the  federal  court. 

In  Kirby  v.  Chicago  &  N.  W.  Ry.  Co.17  a  condemnation 
proceeding  in  a  court  was  held  to  be  removable  into  the 
federal  courts. 

i*  133  TL  S.  529,  10  Sup.  Ct  363,  33  L.  Ed.  766.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  259;  Cent.  Dig.  §§  795,  796?. 

15136  U.  S.  237,  10  Sup.  Ct.  1017,  34  L.  Ed.  346.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  259;  Cent.  Dig.  §§  795,  796?. 

is  139  U.  S.  96,  11  Sup.  Ct.  468,  35  L.  Ed.  88.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  3;  Cent.  Dig.  §§  4,  5. 

IT  (C.  C.)  106  Fed.  551.  See,  also,  ante,  p.  222;  Fishblatt  v.  Atlan- 
tic City  (C.  C.)  174  Fed.  196;  Kaw  Valley  Drainage  Dist.  of  Wyan- 
dotte  County,  Kan.,  v.  Metropolitan  Water  Co.,  186  Fed.  315,  108  C. 
C.  A.  393;  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  239,  25  Sup.  Ct.  251,  49  L.  Ed.  462.  See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  11-20. 


§    112)  SCOPE   OF   THE  JURISDICTION  307 


SCOPE  OF  THE  JURISDICTION 

112.  The  jurisdiction  of  the  district  courts  applies,  gen- 
erally speaking,  to  such  cases  as  could  be  original- 
ly brought  in  the  district  court,  as  set  out  ante, 
p.  218,  and  may  be  summarized  as  follows: 

(a)  Federal  questions. 

(b)  Suits  by  the  United  States,  or  its  officers. 

(c)  Suits    or   separable    controversies   between    citizens 

of  different  states. 

(d)  Suits  between  citizens  and  aliens. 

(e)  Suits  under  grants  of  land  from  different  states, 

(f)  Suits  from  denial  of  civil  rights. 

(g)  Suits  and  prosecutions  against  revenue  officers,  etc, 
(h)  Suits  by  aliens  against  civil  officers  of  the   United 

States. 

The  first  section  of  this  act,  as  carried  into  section  24 
of  the  Judicial  Code,  has  already  been  quoted  in  full  in 
connection  with  the  original  jurisdiction  of  the  district 
court.18  The  second  and  third  sections,  as  now  embodied 
in  section  28  of  the  Judicial  Code,  regulate  the  removal 
from  the  state  courts  of  the  vast  majority  of  instances 
where  removal  is  authorized.  The  first  sentence  of  this 
section  provides  for  removal,  under  certain  circumstances, 
of  cases  arising  under  the  Constitution  and  laws  of  the 
United  States,  or  federal  questions,  as  they  are  commonly 
termed.  This  provision  is  based  upon  the  character  of 
the  controversy,  and  is  independent  of  citizenship. 

The  second  sentence  provides  for  the  removal  of  cases 
dependent  upon  the  kind  of  litigants,  covering  those  which 
could  have  been  originally  instituted  in  the  federal  courts 
under  the  provisions  of  section  24  of  the  Judicial  Code. 
They  cover  suits  brought  by  the  United  States,  contro- 

18  Ante,  p.  219* 


308  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  14 

versies  between  citizens  of  different  states,  and  controver- 
sies between  citizens  and  aliens. 

The  third  sentence  provides  for  removing  a  controversy 
in  the  main  case  which  is  between  citizens  of  different 
states,  and  which  can  be  fully  determined  as  to  them,  or 
controversies  commonly  termed  separable.  This  provides 
only  for  controversies  between  citizens  of  different  states, 
not  for  controversies  between  citizens  and  aliens. 

The  fourth  sentence  provides  for  the  removal  of  contro- 
versies where  prejudice  or  local  influence  can  be  made  to 
appear.  This  covers  only  cases  between  citizens  of  dif- 
ferent states. 

Section  30  of.  the  Judicial  Code  provides  for  controver- 
sies between  citizens  of  the  same  state  claiming  under  land 
grants  of  different  states.  Independent  of  this  provision, 
such  a  case  would  have  been  covered  by  the  provision  of 
section  28  allowing  the  removal  of  any  suit  which  could 
have  been  originally  brought  under  the  provisions  of  section 
24  of  the  Code,  for  that  section  names  among  such  cases 
controversies  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  as  has  been  previously 
shown ;  the  only  difference  being  that  in  case  of  removal  the 
matter  in  dispute  must  exceed  $3,000  in  value.19 

The  next  class  of  cases  for  which  a  removal  is  provided 
is  cases  against  persons  denied  any  civil  right,  and  is  cov- 
ered by  section  31  of  the  Judicial  Code.  Under  this  pro- 
vision both  civil  and  criminal  cases  can  be  removed. 

The  next  provision  as  to  removal  is  the  case  of  suits  and 
prosecutions  against  revenue  officers,  and  is  covered  by 
section  33  of  the  Judicial  Code. 

The  next  provision  is  for  the  removal  of  suits  by  aliens 
against  nonresident  citizens  of  a  state  who  are  acting  as 
civil  officers  of  the  United  States,  and  is  covered  by  sec- 
tion 34  of  the  Judicial  Code. 

i»  Ante,  p.  226. 


§    113)  FEDERAL  QUESTIONS  309 

FEDERAL  QUESTIONS 

113.  In  suits  of  a  civil  nature  at  law  or  in  equity,  the  de- 
fendant or  defendants  are  given  a  right  of  removal 
from  the  state  to  the  federal  court  in  cases  aris- 
ing under  the  Constitution  or  laws  of  the  United 
States,  or  treaties  made  under  their  authority.  In 
order  for  a  case  to  be  removable  under  this  prin- 
ciple, the  existence  of  the  federal  question  must  be 
apparent  on  the  face  of  the  plaintiff's  pleadings, 
and  it  must  be  such  a  case  as  would  be  cognizable 
by  the  court  if  the  same  were  originally  brought 
therein. 

Cases  Arising  under  the  Constitution  and  Laws  of  the  United 
States,  Commonly  Called  Federal  Questions 

This  is  the  first  class  named  in  section  28  of  the  Judicial 
Code,  which,  as  stated  above,  covers  the  great  mass  of  re- 
movable cases,  and  hence  it  is  best  to  quote  the  section  in 
full  in  this  connection.  It  is  as  follows : 

"Any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising 
under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  author- 
ity, of  which  the  district  courts  of  the  United  States  are 
given  original  jurisdiction  by  this  title,  which  may  now 
be  pending  or  which  may  hereafter  be  brought,  in  any 
state  court,  may  be  removed  by  the  defendant  or  defend- 
ants therein  to  the  district  court  of  the  United  States  for 
the  proper  district.  Any  other  suit  of  a  civil  nature,  at 
law  or  in  equity,  of  which  the  district  courts  of  the  United 
States  are  given  jurisdiction  by  this  title,  and  which  are 
now  pending,  or  which  may  hereafter  be  brought,  in  any 
state  court,  may  be  removed  into  the  district  court  of  the 
United  States  for  the  proper  district  by  the  defendant  or 
defendants  therein,  being  nonresidents  of  that  state.  And 
when  in  any  suit  mentioned  in  this  section  there  shall  be  a 


310  DISTRICT  COURT JURISDICTION   BY    REMOVAL     (Ch.  14 

controversy  which  is  wholly  between  citizens  of  different 
states,  and  which  can  be  fully  determined  as  between  them, 
then  either  one  or  more  of  the  defendants  actually  inter- 
ested in  such  controversy  may  remove  said  suit  into  the 
district  court  of  the  United  States  for  the  proper  district. 
And  where  a  suit  is  now  pending,  or  may  hereafter  be 
brought,  in  any  state  court,  in  which  there  is  a  controversy 
between  a  citizen  of  the  state  in  which  the  suit  is  brought 
and  a  citizen  of  another  state,  any  defendant,  being  such 
citizen  of  another  state,  may  remove  such  suit  into  the 
district  court  of  the  United  States  for  the  proper  district, 
at  any  time  before  the  trial  thereof,  when  it  shall  be  made 
to  appear  to  said  district  court  that  from  prejudice  or  local 
influence  he  will  not  be  able  to  obtain  justice  in  such  state 
court,  or  in  any  other  state  court  to  which  the  said  defend- 
ant may,  under  the  laws  of  the  state,  have  the  right,  on 
account  of  such  prejudice  or  local  influence,  to  remove  said 
cause:  Provided,  that  if  it  further  appear  that  said  suit 
can  be  fully  and  justly  determined  as  to  the  other  defend- 
ants in  the  state  court,  without  being  affected  by  such 
prejudice  or  local  influence,  and  that  no  party  to  the  suit 
will  be  prejudiced  by  a  separation  of  the  parties,  said  dis- 
trict court  may  direct  the  suit  to  be  remanded,  so  far  as 
relates  to  such  other  defendants,  to  the  state  court,  to  be 
proceeded  with  therein. 

"At  any  time  before  the  trial  of  any  suit  which  is  now 
pending  in  any  district  court,  or  may  hereafter  be  entered 
therein,  and  which  has  been  removed  to  said  court  from  a 
state  court  on  the  affidavit  of  any  party  plaintiff  that  he 
had  reason  to  believe  and  did  believe  that,  from  prejudice 
or  local  influence,  he  was  unable  to  obtain  justice  in  said 
state  court,  the  district  court  shall,  on  application  of  the 
other  party,  examine  into  the  truth  of  said  affidavit  and 
the  grounds  thereof,  and,  unless  it  shall  appear  to  the  sat- 
isfaction of  said  court  that  said  party  will  not  be  able  to 


§    113)  FEDERAL  QUESTIONS  311 

obtain  justice  in  said  state  court,  it  shall  cause  the  same  to 
be  remanded  thereto. 

"Whenever  any  cause  shall  be  removed  from  any  state 
court  into  any  district  court  of  the  United  States,  and  the 
district  court  shall  decide  that  the  cause  was  improperly 
removed,  and  order  the  same  to  be  remanded  to  the  state 
court  from  whence  it  came,  such  remand  shall  be  imme- 
diately carried  into  execution,  and  no  appeal  or  writ  of  er- 
ror from  the  decision  of  the  district  court  so  remanding 
such  cause  shall  be  allowed:  Provided,  that  no  case  aris- 
ing under  an  act  entitled  'An  act  relating  to  the  liability 
of  common  carriers  by  railroad  to  their  employees  in  cer- 
tain cases,'  approved  April  twenty-second,  nineteen  hun- 
dred and  eight,  or  any  amendment  thereto,  and  brought 
in  any  state  court  of  competent  jurisdiction  shall  be  re- 
moved to  any  court  of  the  United  States." 

Analyzing  the  first  sentence  of  this  section,  it  will  be 
seen  that,  in  order  to  remove  a  case  under  its  provisions, 
it  must  be,  first,  a  suit  of  a  civil  nature,  at  law  or  in  eq- 
uity; second,  it  must  arise  under  the  Constitution  or  laws 
of  the  United  States,  or  treaties  made  or  which  shall  be 
made  under  their  authority,  of  which  the  district  courts 
are  given  original  jurisdiction;  third,  it  is  removable  only 
by  the  defendant. 

The  question  what  constitutes  a  suit  of  a  civil  nature  at 
law  or  in  equity  has  been  discussed  in  connection  with  the 
original  jurisdiction  of  the  district  court.20 

The  same  general  principles  apply  in  connection  with 
the  removal  of  cases. 

As  shown,  also,  in  that  same  connection,  a  mandamus 
proceeding  is  not  such  a  suit  as  can  be  originally  brought, 
and  hence  not  such  a  suit  as  can  be  removed.21 

20  Ante,  p.  220. 

21  Indiana  v.  Lake  Erie  &  W.  R.  Co.  (C.  C.)  85  Fed.  1;    State  ex 
rel.  Clark  v.  White  River  Valley  R.  Co.,  27  S.  D.  65,  129  N.  W.  1034. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  4;    Cent.  Dig.  §§ 
16,  SI. 


312  DISTRICT  COURT JURISDICTION   BY   REMOVAL     (Ch.  14 

For  the  same  reason  a  mere  dependent  or  ancillary  suit 
cannot  be  removed.22 

In  order  to  permit  the  removal  of  a  case  as  arising  un- 
der the  Constitution  and  laws  of  the  United  States,  this 
must  appear  on  the  face  of  the  plaintiff's  pleadings,  and 
cannot  be  made  to  appear  by  the  averments  of  the  petition 
to  remove.  The  construction  of  the  act  of  August  13, 
1888  (25  Stat.  433,  c.  866  [U.  S.  Comp.  St.  1901,  p.  508]), 
as  carried  into  section  28  of  the  Judicial  Code,  in  this  re- 
spect makes  a  radical  difference  between  it  and  the  act*of 
March  3,  1875  (18  Stat.  470,  c.  137),  which  it  amended. 
Under  that  act,  if  it  appeared  either  by  the  plaintiff's 
pleadings,  or  the  defense  thereto,  or  in  any  way,  at  the 
time  of  filing  the  petition  of  removal,  that  the  case  turned 
on  a  federal  question,  it  was  removable.  The  reason  of 
the  difference  in  construction  is  that  the  later  act  provides 
that  only  those  cases  can  be  removed  which  could  have 
been  brought  originally  in  the  district  court.  It  has  been 
seen  in  discussing  the  original  jurisdiction  that  the  district 
court  has  no  jurisdiction  on  the  ground  of  a  federal  ques- 
tion being  involved  unless  that  appears  from  the  plaintiff's 
own  statement  of  his  own  case,  and  that  even  a  statement 
in  the  plaintiff's  case,  by  way  of  anticipation,  that  the  de- 
fendants will  set  up  a  federal  question,  will  not  give  the 
court  jurisdiction.23  Hence,  as  the  courts  would  not  have 
had  jurisdiction  unless  this  appeared  from  the  plaintiff's 
own  case,  it  follows  that  they  cannot  have  jurisdiction  of 
a  case  removed  from  a  state  court  as  involving  a  federal 
question  unless  the  plaintiff's  own  statement  of  his  case 
in  the  state  court  necessarily  shows  that  a  federal  question 
was  involved. 

The  leading  case  on  this  subject  is  Tennessee  v.  Union 

22  Farrell  v.  O'Brien,  199  U.  S.  89,  25  Sup.  Ct  727,  50  L.  Ed.  101; 
Daugherty  v.  Sharp  (C.  C.)  171  Fed.  466.  See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  21,  22. 

as  Ante,  p.  236. 


§    113)  FEDERAL  QUESTIONS  313 

&  Planters'  Bank.24  Under  this  principle  there  are  many 
cases  which  naturally  involve  a  federal  question  on  the 
trial,  and  which  cannot  be  removed  because  there  is  noth- 
ing on  the  face  of  the  plaintiff's  pleadings  to  show  that  a 
federal  question  was  involved.  For  instance,  it  has  been 
seen  that  a  suit  against  a  United  States  marshal  for  an  il- 
legal levy  involves  a  federal  question.  Yet  if  the  plaintiff 
so  words  his  declaration  that  nothing  appears  on  the  face 
of  it  to  show  that  the  defendant  is  a  United  States  marshal, 
or  that  he  is  acting  in  any  federal  capacity,  but  shows 
merely  an  ordinary  action  of  trover,  the  case  could  not  be 
removed;  for  the  federal  question  would  only  come  out  in 
defense  in  such  case,  and  hence  would  not  appear  in  the 
plaintiff's  petition.26 

Suits  against  Corporations  Organized  under  Federal  Law 

This  principle  works  out  interestingly  in  suits  against 
corporations  owing  their  existence  to  federal  legislation. 

It  has  long  been  settled  that  a  federal  question  is  involved 
if  a  suit  is  brought  against  a  corporation  organized  by  vir- 
tue of  federal  law.  In  Oregon  Short  Line  &  U.  N.  R. 
Co.  v.  Skottowe,26  the  plaintiff's  declaration  alleged  that 
the  defendant  corporation  was  organized  under  state  stat- 
utes, artd  merely  held  certain  additional  powers  under  an 
act  of  Congress.  The  court  held  that  here,  too,  in  order 
to  remove  on  the  ground  of  being  a  federal  corporation,  it 
must  appear  on  the  face  of  the  plaintiff's  pleadings  to  have 
been  such,  and  that  it  did  not  become  such  merely  because 
an  act  of  Congress  gave  it  some  additional  powers. 

24  152  U.  S.  454,  14  Sup.  Ct.  654,  38  L.  Ed.  511.     See,  also,  Minne- 
sota v.  Northern  Securities  Co.,  194  U.  S.  48,  24  Sup.  Ct  598,  48  L. 
Ed.  870;  In  re  Winn,  213  U.  S.  458,  29  Sup.  Ct.  515,  53  L.  Ed.  873; 
W.  G.  Coyle  &  Co.  v.  Stem,  193  Fed.  582,  113  C.  C.  A.  450.    See  "Re- 
moval of  Causes,"  Dec,  Dig.  (Key-No.)  §  25;   Cent.  Dig.  §§  58-59. 

25  WALKER  v.  COLLINS,  167  U.  S.  57,  17  Sup.  Ct.  738,  42  L.  Ed. 
76 ;    Mayo  v.  Dockery  (C.  C.)  108  Fed.  897.     See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  25;   Cent.  Dig.  §§  58,  59. 

ze  162  U.  S.  490,  16  Sup.  Ct.  869,  40  L.  Ed.  1048.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §§  19,  25;  Cent.  Dig.  §§  37-46,  59. 


314  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  14 

But  in  the  later  case  of  Texas  &  P.  R.  Co.  v.  Cody,27 
which  was  a  suit  by  a  resident  of  the  district  where  the 
suit  was  brought  against  a  nonresident  corporation  or- 
ganized under  federal  law,  the  court  held  that  the  case 
could  be  removed  by  the  defendant  as  a  nonresident  defend- 
ant, independent  of  the  question  of  its  paternity.  It  went 
on  to  say,  however,  that,  while  the  general  principle  an- 
nounced in  the  Oregon  Short  Line  Case  was  correct,  the 
case  could  be  removed  on  the  ground  of  the  defendant  be- 
ing a  federal  corporation  if  it  became  such  by  virtue  of  an 
act  of  Congress  which  they  were  required  to  notice  judi- 
cially, though  there  was  nothing  on  the  face  of  the  plain- 
tiff's declaration  to  show  it;  thus  restricting  to  some  ex- 
tent the  principle  laid  down  in  the  Oregon  Short  Line 
Case. 

Independent,  however,  of  this  question  of  pleading,  the 
mere  fact  that  a  corporation  is  a  federal  corporation  injects 
a  federal  question  into  the  case.  If  it  cannot  be  removed 
on  the  ground  that  such  federal  question  is  involved,  for 
the  reason  that  it  does  not  so  appear  on  the  pleadings, 
there  are  many  cases  where  this  fact  would  give  a  right  to 
a  writ  of  error  to  the  state  court  from  the  Supreme  Court 
if  the  action  of  the  state  court  deprived  the  company  of 
any  right  claimed  under  the  federal  acts.28 

However,  the  fact  that  the  suit  in  a  state  court  is  against 
a  receiver  appointed  by  a  federal  court  does  not  involve  a 
federal  question.  In  such  case  the  statute  permits  suits 
against  the  receiver,  who  is  appointed  under  the  general 

27  166  U.  S.  606,  17  Sup.  Ct.  703,  41  L.  Ed.  1132.  In  such  case  the 
right  to  remove  is  not  defeated  by  joining  other  defendants  with  the 
federal  corporation,  but  all  must  join  in  the  petition  to  remove.  In 
re  Dunn,  212  TJ.  S.  374,  29  Sup.  Ct.  299,  53  L.  Ed.  558 ;  Texas  &  P.  R. 
Co.  v.  Eastin  &  Knox,  214  U.  S.  153,  29  Sup.  Ct  564,  53  L.  Ed.  946. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  25;  Cent.  Dig.  §§  58, 
59. 

2«Boyd  v.  Great  Western  Coal  &  Coke  Co.  (C.  C.)  189  Fed.  115; 
The  Dalles  &  R.  Ferry  Co.  v.  Hendryx  (C.  C.)  189  Fed.  266.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  25;  Cent.  Dig.  §§  58,  59. 


§    113)  FEDERAL  QUESTIONS  815 

chancery  powers  of  the  court,  and  the  mere  fact  that  he 
is  appointed  by  a  federal  court  does  not  make  it  a  federal 
question.29 

A  federal  question  is  not  involved  when  a  suit  is  brought 
in  a  state  court  to  enjoin  the  importation  of  armed  men 
into  the  state,  for  the  purpose  of  controlling  a  strike,  by  a 
corporation  organized  outside  of  the  state;  the  ground  of 
the  suit  being  that  their  importation  would  be  dangerous 
to  the  peace  and  good  order  of  the  state.30 

A  Suit  is  Not  Removable  on  the  Ground  that  a  Federal  Ques- 
tion is  Involved  unless  it  is  a  Case  of  Which  the  District 
Court  is  Given  Original  Jurisdiction  by  the  First  Section 
of  the  Act 

In  order  for  the  federal  court  to  have  original  jurisdic- 
tion if  the  suit  were  brought  there  on  the  ground  that  a 
federal  question  was  involved,  it  must  not  only  be  a  suit 
of  a  civil  nature  at  common  law  or  in  equity,  but  it  must 
involve,  exclusive  of  interest  and  costs,  the  sum  or  value 
of  three  thousand  dollars.  This  monetary  limit  has  been 
discussed  in  connection  with  the  original  jurisdiction.31 

This  restriction,  however,  limiting  the  right  of  removal 
to  suits  which  could  be  originally  brought  in  a  federal 
court,  refers  simply  to  the  question  of  jurisdiction  over  the 
subject-matter,  not  to  the  latter  part  of  the  section  pre- 
scribing the  district  of  suit.  The  latter  requirement  is  a 
mere  question  of  jurisdiction  over  the  person,  and  is  waiv- 
able,  whereas  the  former  is  a  question  of  jurisdiction,  vital 
to  maintaining  any  suit  at  all,  and  cannot  be  waived.  It 

2»  Gableman  v.  Railway  Co.,  179  U.  S.  335,  21  Sup.  Ct.  171,  45  L. 
Ed.  220,  limiting  Texas  &  P.  Ry.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup. 
Ct.  905,  36  L.  Ed.  829;  Rural  Home  Tel.  Co.  v.  Powers  (C.  C.)  376 
Fed*  986;  People  of  State  of  New  York  v.  Bleecker  St.  &  F.  F.  R. 
Co.  (C.  C.)  178  Fed.  156.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  19;  Cent.  Dig.  §  48. 

so  Arkansas  v.  Kansas  &  T.  Coal  Co.,  183  U.  S.  185,  22  Sup.  Ct. 
47,  46  L.  Ed.  144.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  § 
19;  Cent.  Dig.  §§  37-46. 

si  Ante,  p.  227. 


316  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  14 

was  the  intention  of  Congress  by  this  restriction  on  re- 
moval of  cases  to  limit  them  simply  in  reference  to  juris- 
diction over  the  subject-matter,  not  in  reference  to  juris- 
diction over  the  person.32 

This  limitation  as  to  original  jurisdiction  shuts  out  cases 
over  which  federal  courts,  as  courts  of  equity,  have  no  ju- 
risdiction, though  the  state  court  would  have  by  reason  of 
a  special  state  statute.  As  an  illustration,  many  states 
have  statutes  permitting  attacks  on  deeds  alleged  to  be 
fraudulent,  without  obtaining  a  previous  judgment.  Hence 
a  suit  brought  originally  in  a  state  court  would  be  within 
the  jurisdiction  of  that  court.  The  federal  courts  have  held, 
however,  that  these  statutes  cannot  confer  equity  juris- 
diction on  the  federal  courts.  Hence  a  case  of  this  sort 
cannot  be  removed  from  a  state  court  to  the  federal  court, 
as  the  federal  court  could  not  entertain  jurisdiction  of  it 
after  it  was  removed :  and,  if  such  case  were  removed,  it 
would  remand  it.33 

On  the  other  hand,  if  the  state  court  in  which  the  suit 
was  originally  brought  would  have  no  jurisdiction  over  it, 
and  the  case  was  removed  into  the  federal  court,  the  latter 
court  would  acquire  no  jurisdiction  thereby,  though  it 
might  be  a  case  which  might  have  been  originally  in- 
stituted in  the  federal  court.  In  such  case,  the  federal 
court  would  not  remand,  as  the  state  court  is  the  one  which 
is  lacking  in  jurisdiction,  but  would  dismiss  the  case,  for 
the  federal  court  could  not  acquire  jurisdiction  by  removal 
from  a  court  which  did  not  have  jurisdiction  in  the  first 
instance. 

32  MEXICAN  NAT.  R.  CO.  v.  DAVIDSON,  157  U.  S.  201,  15  Sup. 
Ct.  563,  39  L.  Ed.  672.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.) 
§§  11,  12;  Cent.  Dig.  §§  29-33. 

ss  SCOTT  v.  NEELY,  140  TJ.  S.  106,  11  Sup.  Ct.  712,  35  L.  Ed. 
358;  Cates  v.  Allen,  149  U.  S.  451,  13  Sup.  Ct.  883,  977,  37  L.  Ed. 
804.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  11;  Cent.  Dig. 
§§  29-31. 


§    113)  FEDERAL  QUESTIONS  317 

An  illustration  of  this  principle  is  those  cases  where 
suits  have  been  instituted  in  a  state  court  to  enforce  cer- 
tain provisions  of  the  interstate  commerce  act,  the  enforce- 
ment of  which  is  conferred  by  that  act  upon  the  federal 
courts  alone.  In  such  case  the  state  courts  will  have  no 
jurisdiction,  and  if  it  was  removed,  the  federal  courts 
would  acquire  no  jurisdiction,  though  the  federal  courts 
would  have  jurisdiction  if  the  suit  had  originally  been 
brought  there.84 

Where  a  case  is  removed  of  which  the  federal  court 
would  have  no  jurisdiction,  even  the  removing  party  could 
question  the  jurisdiction.  This  follows  necessarily  from 
the  fact  that,  if  the  want  of  jurisdiction  appears,  the  court 
can  dismiss  the  case  of  its  own  motion,  and  hence  either 
party  can  question  it.35 

Under  this  branch  of  jurisdiction  of  cases  removed  on 
the  ground  of  a  federal  question  being  involved,  the  whole 
case  goes  up  if  a  substantial  federal  question  is  really  in- 
volved. In  such  case  the  court  obtaining  jurisdiction  on 
the  ground  of  a  federal  question  will  consider  all  the  issues 
joined,  whether  federal  or  not.36 

The  party  entitled  to  remove  under  this  provision  is 
simply  the  defendant,  the  theory  of  the  right  to  remove  at 
all  being  that  it  is  necessary  to  protect  the  party  from  state 
influences.  The  plaintiff,  having  voluntarily  resorted  to 
the  state  court  to  assert  such  a  right,  could  not  complain 
if  he  is  not  allowed,  after  suing  in  that  court,  to  proceed  to 

s*  Darnell  y.  Illinois  Cent.  R.  Co.  (C.  C.)  190  Fed.  656.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  11;  Cent.  Dig.  §§  29-81. 

ss  German  Savings  &  Loan  Soc.  v.  Dormitzer,  116  Fed.  471,  53  C. 
C.  A.  639 ;  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  113,  66  C.  C.  A. 
179.  Compare  Garrozi  v.  Dastas,  204  U.  S.  64,  27  Sup.  Ct.  224,  51 
L.  Ed.  369.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  102; 
Cent.  Dig.  §§  218-224. 

se  Omaha  Horse  Ry.  Co.  v.  Cable  Tramway  Co.  (C.  C.)  32  Fed.  727; 
Texas  v.  Day  Land  &  Cattle  Co.  (C.  C.)  49  Fed.  593.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  263;  Cent.  Dig.  §  799;  "Removal  of  Causes" 
Dec.  Dig.  (Key-No.)  §  95;  Cent.  Dig.  §§  204,  205. 


318  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  14 

another.  Hence  in  this  case  the  removal  is  given  to  the 
defendant  or  defendants.  This  has  been  construed  to 
mean  all  of  the  defendants.  If  they  are  all  necessary  par- 
ties, they  must  all  join  in  the  petition  for  removal,  or  the 
case  cannot  be  removed.37 

When,  however,  it  is  said  that  all  the  defendants  must 
join  in  the  petition  for  removal,  it  means  all  those  who 
are  necessary  parties  as  defendants.  The  right  is  not  de- 
feated by  the  failure  of  nominal  or  formal  parties  to  join 
in  the  petition.38 

Even  important  parties  who  are  not  served,  and  who  do 
not  appear,  are  not  in  this  sense  parties  to  the  suit,  and 
their  failure  to  join  in  the  petition  will  not  defeat  the  right 
of  removal. 

Tremper  v.  Schwabacher 39  was  a  suit  against  several 
partners.  Only  one  was  served  with  process.  The  others, 
not  being  served,  did  not  appear.  The  court  held  that  the 
one  who  was  served  could  remove  the  case,  though  the  oth- 
ers did  not  join  in  the  petition. 

The  question  what  parties  are  necessary  in  suits  in  the 
federal  courts  has  been  discussed  in  a  previous  connec- 
tion.40 

Suits  under  the  Employer's  Liability  Act 

These  suits  are  expressly  excluded  from  the  privilege  of 
removal  by  the  concluding  proviso  of  section  28  of  the  JU- 
ST Chicago,  R.  I.  &  P.  R.  Co.  v.  Martin,  178  U.  S.  245,  20  Sup.  Ct. 
854,  44  L.  Ed.  1055 ;  German  Savings  &  Loan  Soc.  v.  Dorrnitzer,  116 
Fed.  471,  53  C.  C.  A.  639 ;  Miller  v.  Le  Mars  Nat.  Bank  (C.  C.)  116 
Fed.  551 ;  In  re  Dunn,  212  U.  S.  374,  29  Sup.  Ct.  299,  53  L.  Ed.  558. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Keif-No.)  §  82;  Cent.  Dig.  §  163. 
s  s  Henderson  v.  Cabell  (C.  C.)  43  Fed.  257;  Shattuck  v.  North 
British  &  Mercantile  Ins.  Co.,  58  Fed.  609,  7  C.  C.  A.  386.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §§  77,  82;  Cent.  Dig.  §§  161, 
163. 

39  (C.  C.)  84  Fed.  413.    There  is  some  conflict  of  authority  on  the 
question.     See  Buck  v.  Felder  (D.  C.)  196  Fed.  419,  422,  423.     See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  77,  S2;    Cent.  Dig.  §| 
161,  16S. 

40  Ante,  pp.  256,  269. 


§    114)  SUITS   BY   THE    UNITED   STATES  319 

dicial  Code.     Even  diverse  citizenship  does  not  give  juris- 
diction in  such  case.41 


SUITS  BY  THE  UNITED  STATES 

114.  The  federal   jurisdiction  by  removal  from  the  state 
courts  extends  to  suits  by  the  United  States. 

As  the  federal  courts %  are  given  original  jurisdiction  of 
these  suits  by  section  24  of  the  Judicial  Code,  it  follows 
that  the  nonresident  defendant  could  remove  such  a  suit 
into  the  federal  court  if  brought  in  a  state  court,  and  that, 
too,  independent  of  the  amount  involved,  as  the  federal 
courts  have  original  jurisdiction  of  suits  by  the  United 
States,  independent  of  the  amount  involved. 

4i  Symonds  v.  St.  Louis  &  S.  E.  R.  Co.  (C.  C.)  192  Fed.  353; 
Strauser  v.  Chicago,  B.  &  Q.  R.  Co.  (D.  C.)  193  Fed.  293 ;  Saiek  v. 
Pennsylvania  R.  Co.  (C.  C.)  193  Fed.  303;  Ullrich  v.  New  York,  N. 
H.  &  H.  R.  Co.  (D.  C.)  193  Fed.  768 ;  Hulac  v.  Chicago  &  N.  W.  R. 
Co.  (D.  C.)  194  Fed.  747;  Stafford  v.  Norfolk  &  W.  R.  Co.  (D.  C.) 
202  Fed.  605.  Contra:  Van  Brimmer  v.  Texas  &  P.  R.  Co.  (C.  C.) 
190  Fed.  394.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  S; 
Cent.  Dig.  §§  4,  5. 


320  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  15 


CHAPTER  XV 

THE    DISTRICT    COURT    (Continued)— JURISDICTION    BY    RE- 
MOVAL (Continued) 

115.  Controversies  between  Citizens  of  Different  States. 

116.  Devices  to  Prevent  Removal. 

117.  Controversies  between  Citizens  of  the   Same   State  Claiming 

Lands  under  Grants  of  Different  States. 

118.  Controversies  between  Citizens  of  a  State  and  Foreign  States, 

Citizens  or  Subjects. 

119.  Parties  Entitled  to  Remove. 

120.  Separable  Controversies. 

121.  Removal  on  Ground  of  Prejudice  or  Local  Influence. 

122.  Removal  because  of  State  Denial  of  Equal  Civil  Rights. 

123.  Removal  of   Suits  against  Officers  or  Persons   Enforcing  the 

Internal  Revenue  Laws. 


CONTROVERSIES  BETWEEN  CITIZENS  OF  DIF- 
FERENT STATES 

115.  The  twenty-fourth  section  of  the  Judicial  Code  gives 
the  federal  courts  jurisdiction  of  suits  of  a  civil 
nature  at  common  law  or  in  equity  in  which  there 
shall  be  a  controversy  between  citizens  of  different 
states,  and  in  which  the  matter  in  controversy  ex- 
ceeds, exclusive  of  interest  and  costs,  the  sum  or 
value  of  $3,000;  and  the  twenty-eighth  section 
gives  the  right  of  removal  in  such  cases.  This  is 
much  the  most  frequent  ground  of  removal  in  ac- 
tual practice.  In  order  to  give  the  right  of  remov- 
al, the  requisites  must  concur  which  have  been 
discussed  in  connection  with  the  original  jurisdic- 
tion of  such  suits.1 

If  the  suit,  for  instance,  is  not  such  a  suit  as  the  federal 
court  could  entertain  under  its  general  equity  jurisdiction, 

i  Ante,  p.  218. 


§    115)  CITIZENS   OF   DIFFERENT  STATES  321 

though  the  state  court  could  entertain  it,  like  a  suit  by  a 
simple-contract  creditor  to  set  aside  a  conveyance  which 
could  be  brought  in  a  state  court  by  virtue  of  a  state  stat- 
ute, then  the  federal  courts  cannot  take  jurisdiction,  but  in 
such  case  would  have  to  remand.2 

In  this  class  of  cases,  also,  if  the  court  has  jurisdiction 
over  the  subject-matter  of  the  case,  it  may  be  removed, 
though  the  suit  is  not  brought  in  the  district  of  the  defend- 
ant's residence.8 

As  to  suits  brought  in  a  state  court  in  a  district  where 
neither  plaintiff  nor  defendant  resided,  the  earlier  decisions 
preponderated  in  favor  of  the  doctrine  that  the  defendant 
could  remove  such  a  case,  on  the  theory  that  the  defend- 
ant alone  was  interested  in  the  place  of  suit ;  but  later  cas- 
es have  established  the  doctrine  that  such  a  case  is  not  re- 
movable by  defendant  without  the  consent  or  waiver  of 
the  question  by  plaintiff.4 

Removal  as  Affected  by  Assignment 

This  clause  limiting  removable  cases  to  those  cases  of 
which  the  courts  are  given  original  jurisdiction  has  wrought 
one  other  important  change  in  the  law.  The  previous  acts 
did  not  have  such  a  clause,  and  hence  it  was  held  under 
them  that  the  clause  forbidding  the  assignee  to  bring  suit 
unless  his  assignor  could  also  sue  applied  only  to  cases 
originally  instituted  in  the  federal  courts,  and  did  not  pre- 

2  SCOTT  v.  NEELY,  140  U.  S.  106,  11  Sup.  Ct.  712,  35  L.  Ed.  358 ; 
Gates  v.  Allen,  149  U.  S.  451,  13  Sup.  Ct  883,  977,  37  L.  Ed.  804; 
Anderson  v.  Sharp  (C.  C.)  189  Fed.  247 ;  ante,  pp.  224,  225.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  102;  Cent.  Dig.  §§  218-224. 

s  MEXICAN  NAT.  R.  CO.  v.  DAVIDSON,  157  U.  S.  201,  15  Sup. 
Ct.  563,  39  L.  Ed.  672.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  12;  Cent.  Dig.  §§  52,  S3. 

*  In  re  Wisner,  203  U.  S.  449,  27  Sup.  Ct  150,  51  L.  Ed.  264 ;  In 
re  Moore,  209  U.  S.  490,  28  Sup.  Ct.  585,  706,  52  L.  Ed.  904,  14  Ann. 
Cas.  1164;  Ex  parte  Harding,  219  U.  S.  363,  31  Sup.  Ct  324,  55  L. 
Ed.  252,  37  L.  R.  A.  (N.  S.)  392 ;  Puget  Sound  Sheet  Metal  Works  v. 
Great  Northern  R.  Co.  (D.  C.)  195  Fed.  350.  See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig.  §§  32,  S3. 
HUGHES  FED.PB.(2o  ED.) — 21 


322  DISTRICT  COURT JURISDICTION   BY   REMOVAL     (Ch.  15 

vent  the  removal  of  such  cases  when  originally  instituted 
in  the  state  courts.  But  the  above  change  in  the  law  has 
placed  original  suits  and  removable  cases  on  the  same  foot- 
ing, so  that  now  a  suit  by  an  assignee  in  a  state  court  can- 
not be  removed  into  the  federal  court  on  the  ground  of 
diverse  citizenship  unless  it  could  have  been  originally  in- 
stituted in  the  federal  court.5 

In  discussing  the  original  jurisdiction  of  the  courts,  it 
has  been  seen  that  all  the  parties  on  each  side  must  be  ca- 
pable of  suing  or  being  sued.  This  same  principle  applies 
to  cases  removable  on  the  ground  of  diverse  citizenship.6 

It  is  also  true  in  removal  as  in  original  cases  that  this 
principle  only  applies  to  necessary  parties,  and  that  the 
joinder  of  nominal  or  unnecessary  parties  will  not  defeat 
the  right  of  removal.7 


DEVICES  TO  PREVENT  REMOVAL 

116.  The  removal  of  a  case  may  be  prevented  by  various! 
devices,  as  by  assigning  the  cause  of  action  to  a 
plaintiff  incompetent  to  sue  in  the  federal  courts, 
or  by  so  framing  the  suit  as  to  make  parties  de- 
fendants who  would  defeat  the  jurisdiction;  and 
such  devices  are  successful  in  the  absence  of  bad 
faith. 

5  MEXICAN  NAT.  R.  CO.  v.  DAVIDSON,  157  U.  S.  201,  15  Sup. 
Ct.  563,  39  L.  Ed.  672 ;  Board  of  Com'rs  of  Delaware  County  v.  Die- 
bold  Safe  &  Lock  Co.,  133  U.  S.  473,  10  Sup.  Ct  399,  33  L.  Ed.  674. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  11;  Cent.  Dig.  §§ 
29-31. 

e  Ante,  p.  255 ;  Gage  v.  Carraher,  154  TJ.  S.  656,  14  Sup.  Ct.  1190, 
25  L.  Ed.  989;  Blake  v.  McKim,  103  U.  S.  336,  26  L.  Ed.  563.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  29;  Cent.  Dig.  §  69. 

7  Patterson  v.  Railroad  Co.  (C.  C.)  Ill  Fed.  262 ;  Bacon  v.  Rives, 
106  U.  S.  99,  1  Sup.  Ct.  3,  27  L.  Ed.  69;  Ex  parte  State  of  Nebraska, 
209  U.  S.  436,  28  Sup.  Ct.  581,  52  L.  Ed.  876 ;  Lawrence  v.  Southern 
Pac.  Co.  (C.  C.)  165  Fed.  241 ;  ante,  p.  256.  See  "Removal  Of  Causes," 
Dec.  Dig.  (Key-No.)  §  31;  Cent.  Dig.  §  71. 


§   116)  DEVICES  TO   PREVENT  EEMOVAL  323 

It  has  been  seen  in  the  previous  discussion  8  that  devices 
to  confer  jurisdiction  upon  the  federal  courts  are  forbidden 
by  the  law.  It  is,  however,  a  rule  which  does  not  work 
both  ways.  Devices  to  prevent  such  jurisdiction  are  fre- 
quently successful. 

In  Oakley  v.  Goodnow  9  an  Iowa  corporation  which  had 
a  claim  against  a  citizen  of  New  York  transferred  it  to  an- 
other citizen  of  New  York  under  an  agreement  that  the 
latter  should  act  as  trustee  in  collecting  the  fund,  and  ac- 
count to  the  assignor  for  it.  The  defendant  (the  law  not 
then  limiting  the  right  of  removal  to  nonresident  defend- 
ants) attempted  to  remove  the  case  to  the  federal  court, 
claiming  that  this  was  a  mere  device  to  defeat  jurisdiction. 
The  Supreme  Court,  however,  held  that  it  was  a  device 
which  accomplished  its  purpose,  and  that  his  only  relief 
was  in  the  state  court. 

It  is  not  an  uncommon  practice  to  join  other  defendants- 
for  the  purpose  of  defeating  jurisdiction. 

In  personal  injury  suits,  for  instance,  against  nonresi- 
dent corporations,  it  is  not  uncommon  for  a  plaintiff  who 
may  desire  to  prevent  removal  to  join  with  the  corporation 
itself  the  employe  who  was  responsible  for  the  accident,  if 
his  citizenship  is  the  same  as  that  of  the  plaintiff.  Under 
such  circumstances  the  right  of  removal  would  be  defeated 
if  the  cause  of  action  asserted  is  bona  fide,  for  the  plaintiff 
has  the  right,  in  an  honest  discretion,  to  bring  his  suit  this 
way;  and  this  is  true  though  the  parties  joined  might  have 
different  defenses,  for  the  right  of  removal  is  judged  inde- 
pendent of  the  defense,  and  the  court  has  no  right  to  dictate 
to  the  plaintiff  how  he  should  bring  his  suit.10 

s  Ante,  p.  285. 

»118  U.  S.  43,  6  Sup.  Ct.  944,  30  L.  Ed.  01.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  35;  Cent.  Dig.  §§  77,  78. 

10  Charman  v.  Lake  Erie  &  W.  R.  Co.  (C.  C.)  105  Fed.  449;  Chica- 
go, R.  I.  &  P.  R.  Co.  v.  Martin,  178  U.  S.  245,  20  Sup.  Ct.  854,  44  L. 
Ed.  1055 ;  Person  v.  Illinois  Cent.  R.  Co.  (C.  C.)  118  Fed.  342.  Com- 
pare Helms  v.  Northern  Pac.  R.  Co.  (C.  C.)  120  Fed.  389.  See  "Re- 
moval of  Causes"  Dec.  Dig.  (Key-No.)  §  36;  Cent.  Dig.  §  79. 


324  DISTRICT  COURT — JURISDICTION  BY   REMOVAL     (Ch.  15 

On  the  other  hand,  where  such  a  joinder  is  made  with 
the  knowledge  on  the  plaintiff's  part  that  the  allegations  on 
which  it  is  based  are  false,  and  that  he  cannot  expect  to  re- 
cover, and  with  the  intent  on  his  part  to  defeat  the  right  of 
removal,  he  will  fail  in  his  object,  and  the  court,  on  proper 
charges  in  the  petition,  will  permit  such  removal.  Such  a 
right  of  removal,  however,  when  sustainable  under  these 
authorities,  rests  upon  the  necessity  of  practically  proving 
bad  faith,  and  a  motive  to  defeat  removal  is  not  sufficient 
evidence  of  bad  faith.11 

Rearrangement  of  Parties 

In  passing  upon  the  right  of  removal,  the  same  principle 
applies  as  in  original  suits.  The  court  judges  of  the  right 
by  the  actual  interest  of  the  parties,  and  not  by  the  meth- 
od in  which  the  pleader  may  choose  to  arrange  them.12 

11  Wecker  r.  National  Enameling  &  Stamping  Co.,  204  U.  S.  176, 
27  Sup.  Ct.  184,  51  L.  Ed.  430,  9  Ann.  Cas.  757;    Chicago,  B.  &  Q. 
R.  Co.  v.  Willard.  220  U.  S.  413,  31   Sup.  Ct  460,  55  L.  Ed.  521; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Dowell,  229  U.  S.  102,  33  Sup.  Ct.  684. 

57  L.  Ed. ;  Hukill  v.  Maysville  &  B.  S.  R.  Co.  (C.  C.)  72  Fed.  745 ; 

Union  Terminal  R.  Co.  v.  Chicago,  B.  &  Q.  R.  R.  Co.  (C.  C.)  119  Fed. 
209 ;  Bryce  v.  Southern  R.  Co.  (C.  C.)  125  Fed.  958 ;   Crawford  v.  Illi- 
nois Cent.  R.  Co.  (C.  C.)  130  Fed.  395 ;    Boatmen's  Bank  of  St.  Louis 
v.  Fritzlen,  135  Fed.  650,  68  C.  C.  A.  288 ;  McGuire  v.  Great  Northern 
R.  Co.  (C.  C.)  153  Fed.  434;    Foster  v.  Coos  Bay  Gas  &  Electric  Co. 
(C.  C.)  185  Fed.  979 ;   Enos  v.  Kentucky  Distilleries  &  Warehouse  Co., 
189  Fed.  342,  111  C.  C.  A.  74;    Armstrong  v.  Kansas  City  Southern 
R.  Co.  (C.  C.)  192  Fed.  608 ;    Clark  v.  Chicago,  R.  I.  &  P.  R.  Co.  (D. 
C.)  194  Fed.  505.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  § 
36;  Cent.  Dig.  §  79. 

12  Removal  Cases,  100  U.  S.  457,  25  L.  Ed.  593;    Evers  v.  Watson, 
156  II.  S.  527,  15  Sup.  Ct.  430,  39  L.  Ed.  520;    Steele  v.  Culver,  211 
U.  S.  26,  29  Sup.  Ct.  9,  53  L.  Ed.  74.    See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  37;  Cent.  Dig.  §  80. 


§    117)  LAND   GRANTS  OF   DIFFERENT   STATES  325 

• 

CONTROVERSIES  BETWEEN  CITIZENS  OF  THE 

SAME  STATE  CLAIMING  LANDS  UNDER 

GRANTS  OF  DIFFERENT  STATES 

117.  As  the  federal  courts  are  given  jurisdiction  of  contro- 
versies between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  such  a  case 
would  be  removable. 

In  such  case,  however,  there  is  a  special  provision  in  sec- 
tion 30  of  the  Judicial  Code,  which  shows  the  method  un- 
der which  it  is  necessary  to  make  it  appear  to  the  court  that 
such  a  question  is  involved.  The  language  of  that  section 
is  as  follows :  "If  in  any  action  commenced  in  a  state  court 
the  title  of  land  be  concerned,  and  the  parties  are  citizens 
of  the  same  state  and  the  matter  in  dispute  exceeds  the 
sum  or  value  of  three  thousand  dollars,  exclusive  of  inter- 
est and  costs,  the  sum  or  value  being  made  to  appear,  one 
or  more  of  the  plaintiffs  or  defendants,  before  the  trial,  may 
state  to  the  court,  and  make  affidavit  if  the  court  require  it, 
that  he  or  they  claim,  and  shall  rely  upon,  a  right  or  title  to 
the  land  under  a  grant  from  a  state,  and  produce  the  orig- 
inal grant,  or  an  exemplification  of  it,  except  where  the  loss 
of  public  records  shall  put  it  out  of  his  or  their  power,  and 
shall  move  that  any  one  or  more  of  the  adverse  party  in- 
form the  court  whether  he  or  they  claim  a  right  or  title  to 
the  land  under  a  grant  from  some  other  state,  the  party  or 
parties  so  required  shall  give  such  information,  or  otherwise 
not  be  allowed  to  plead  such  grant  or  give  it  in  evidence 
upon  the  trial.  If  he  or  they  inform  the  court  that  he  or 
they  do  claim  under  such  grant,  any  one  or  more  of  the 
party  moving  for  such  information  may  then,  on  petition 
and  bond,  as  hereinbefore  mentioned  in  this  chapter,  re- 
move the  cause  for  trial  to  the  district  court  of  the  United 
States  next  to  be  holden  in  such  district;  and  any  one  of 


DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  15 

either  party  removing  the  cause  shall  not  be  allowed  to 
plead  or  give  evidence  of  any  other  title  than  that  by  him 
or  them  stated  as  aforesaid  as  the  ground  of  his  or  their 
claim." 

It  should  be  noted  that  no  monetary  limit  is  required 
in  suits  of  this  nature  originally  instituted  in  the  district 
court  under  section  24  of  the  Judicial  Code,  whereas  there 
is  a  limit  of  $3,000  as  to  suits  removed  on  this  ground. 


CONTROVERSIES  BETWEEN  CITIZENS  OF  A 
STATE  AND   FOREIGN    STATES,   CITI- 
ZENS OR  SUBJECTS 

118.  In  such  case  the  right  of  removal  exists,  as  it  is  a  class 
of  which  the  federal  courts  are  given  original  ju- 
risdiction by  the  twenty-fourth  section  of  the  Judi- 
cial Code. 

This  class  does  not  cover  controversies  between  aliens. 
Of  such  cases  the  federal  courts  have  no  jurisdiction.13 

There  is  a  conflict  of  decision  on  the  question  whether  a 
federal  court  would  have  jurisdiction  in  a  case  where  citi- 
zens of  a  state  are  plaintiffs,  and  citizens  of  a  different  state 
and  aliens  are  defendants. 

In  Tracy  v.  Morel  14  it  is  held  that  this  latter  is  a  casus 
omissus  in  the  statute,  and  that  the  federal  courts  would 
not  have  jurisdiction.  On  the  other  hand,  in  Roberts  v. 
Pacific  &  A.  R.  &  Nav.  Co.15  Judge  Hanford,  in  a  well-con- 

13  Merchants'  Cotton  Press  &  Storage  Co.  v.  Insurance  Co.  of  N. 
A.,  151  U.  S.  368,  14  Sup.  Ct.  367,  38  L.  Ed.  195;  Pooley  v.  Luco 
(C.  C.)  72  Fed.  561;  ante,  p.  262.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  41;  Cent.  Dig.  §§  82^-84. 

i*  (C.  C.)  88  Fed.  801.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  41;  Cent.  Dig.  §§  82y2-84. 

is  (C.  C.)  104  Fed.  577,  affirmed  on  this  point  but  reversed  on  the 
merits  121  Fed.  785,  58  C.  C.  A.  61.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  41;  Cent.  Dig. 


§    118)      CITIZENS   AND  FOREIGN   STATES,  SUBJECTS,  ETC.      327* 

sidered  opinion,  holds  that  such  a  case  would  fall  within 
the  federal  jurisdiction.  It  seems  to  the  author  that,  how- 
ever liberally  the  removal  act  ought  to  be  construed,  the 
line  of  decisions  holding-  that  the  case  does  not  fall  within 
the  jurisdiction  of  the  federal  courts  best  accords  with  the 
statute.  If  a  federal  court  has  jurisdiction,  it  must  be  un- 
der one  of  two  phrases  in  the  first  section  of  the  Act  of 
August  13,  1888 — either  on  the  language,  (1)  "in  which 
there  shall  be  a  controversy  between  citizens  of  different 
states";  or  (2)  "a  controversy  between  citizens  of  a  state 
and  foreign  states,  citizens  or  subjects." 

If  the  rulings  of  the  federal  courts  in  other  connections 
to  the  effect  that  a  "controversy  between  citizens  of  differ- 
ent states"  means  a  controversy  in  which  all  the  citizens  on 
one  side  and  all  the  citizens  on  the  other  are  citizens  of 
different  states,  jurisdiction  in  the  case  supposed  could  cer- 
tainly not  be  supported  upon  that,  for  one  of  the  parties 
defendant  in  such  case  is  not  a  citizen,  but  an  alien.  On 
the  other  hand,  if  that  same  principle  of  construction  is  ap-' 
plied  to  the  second  class,  a  controversy  in  the  case  suppos- 
ed is  not  between  citizens  of  a  state  and  foreign  states,  cit- 
izens or  subjects,  for  one  of  the  defendants  is  neither  a  for- 
eign state,  citizen  nor  subject,  but  a  citizen  of  a  different 
state.  This  would  seem  to  be  the  necessary  construction 
of  the  statute,  and  this  is  the  view  taken  by  the  standard 
work  on  the  subject.16 

A  suit  by  an  alien  against  a  corporation,  nonresident  in 
the  district  where  the  suit  is  brought,  is  removable  by  the 
nonresident  corporation.17  And  so  as  to  a  suit  by  a  citizen 


i«  Black,  Dill.  Rem.  Causes,  §  34. 

IT  Stalker  v.  Pullman's  Palace-Car  Co.  (C.  C.)  81  Fed.  989;  Decker 
v.  Southern  R.  Co.  (C.  C.)  189  Fed.  224;  Smellie  v.  Southern  Pac. 
Co.  (D.  C.)  197  Fed.  641.  But  there  is  some  conflict.  Odhner  v. 
Northern  Pac.  R.  Co.  (C.  C.)  188  Fed.  507.  See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  27;  Cent.  Dig.  §§  64-68. 


328  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  15 

against  an  alien.18     But  not  a  suit  by  a  state  against  an 
alien  nonresident.19 


PARTIES  ENTITLED  TO  REMOVE 

119.  Under  all  the  classes  of  cases  previously  discussed,  ex- 
cept cases  arising  under  the  Constitution  and  laws 
of  the  United  States,  the  right  of  removal  is  in  the 
defendant,  provided  he  is  a  nonresident. 

As  the  right  to  confer  jurisdiction  in  such  cases  on  the 
federal  courts  is  based  on  the  theory  of  protection  from 
local  prejudice  or  injustice,  it  is  natural  that  only  the  non- 
resident should  have  the  right  to  remove  in  cases  where 
the  jurisdiction  does  not  depend  upon  a  federal  question; 
and  the  statute  follows  this  theory  in  the  second  sentence 
of  section  28  of  the  Judicial  Code. 

Here,  too,  the  principle  applies  that  all  of  the  defendants 
who  are  necessary  parties  must  join  in  the  petition  to  re- 
move, and  that  all  must  be  nonresidents.  Though  the  cit- 
izenship might  otherwise  be  such  as  would  give  the  fed- 
eral courts  jurisdiction  over  the  subject-matter,  still  in  this 
case  only  the  nonresident  can  remove.20 

If,  however,  the  permanent  residence  of  the  defendant  is 
outside  of  the  district  where  suit  is  brought,  his  temporary 


is  Wind  River  Lumber  Co.  v.  Frankfort  Marine,  Accident  Plate 
Glass  Ins.  Co.,  196  Fed.  340,  116  C.  C.  A.  160.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key  -No.)  §§  27,  45;  Cent.  Dig.  §§  64-68,  89. 

is  O'Conor  v.  Texas,  202  U.  S.  501,  26  Sup.  Ct.  726,  50  L.  Ed.  1120. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  41;  Cent.  Dig.  §§ 


20  Martin  v.  Snyder,  148  TJ.  S.  663,  13  Sup.  Ct.  706,  37  L.  Ed.  602; 
Blackburn  v.  Blackburn  (C.  C.)  142  Fed.  901  ;  Hackett  v.  Kuhne  (C. 
C.)  157  Fed.  317;  McNaul  v.  West  Indian  Securities  Corp.  (C.  C.) 
178  Fed.  308.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  44, 
45;  Cent.  Dig.  §§  88,  89. 


§   120)  SEPARABLE   CONTROVERSIES  329 

residence   in   the   district   will   not   defeat   his   right  of   re- 
moval.21 

The  nominal  plaintiff  may  sometimes  be  the  real  defend- 
ant and  as  such  entitled  to  remove,  as  under  state  statutes 
prescribing  that  a  party  who  cannot  really  control  the  liti- 
gation shall  occupy  the  position  of  plaintiff  on  the  record." 

SEPARABLE  CONTROVERSIES 

120.  The  jurisdiction  by  removal  from  state  courts  extends 
to  controversies  wholly  between  citizens  of  differ- 
ent states,  and  which  can  be  fully  determined  as 
between  them,  when  removal  could  be  had  as  to 
any  one  or  more  of  the  defendants  under  the  gen- 
eral principles  heretofore  discussed;  such  right  of 
removal  being  granted  in  such  cases  to  any  one  or 
more  defendants  actually  interested. 

In  order  to  justify  a  removal  on  this  ground,  the  contro- 
versy in  a  suit  must  be  a  separate  and  distinct 
cause  of  action,  on  which  a  separate  suit  could  be 
maintained  as  between  the  parties  thereto,  inde- 
pendent of  the  others,  and  not  a  mere  incidental 
controversy  growing  out  of  the  main  suit. 

This  class  of  removal  cases  is  commonly  called  separable 
controversies. 

In  order  to  obtain  a  removal  on  this  ground,  it  must  ap- 
pear from  the  plaintiff's  pleadings  that  the  contro- 
versy which  it  is  desired  to  remove  is  a  separable 
controversy. 

The  third  sentence  of  section  28  of  the  Judicial  Code  pro- 
vides :  "And  when  in  any  suit  mentioned  in  this  section 

21  Chiatovich  v.  Hanchett  (C.  C.)  78  Fed.  193.     See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §§  U,  45;    Cent.  Dig.  §§  88,  89. 

22  Mason  City  &  Ft.  D.  R.  Co.  v.  Boynton,  204  U.  S.  570,  27  Sup. 
Ct.  321,  51  L.  Ed.  629.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 

U;  Cent.  Dig.  §  88. 


330  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  15 

there  shall  be  a  controversy  which  is  wholly  between  citi- 
zens of  different  states,  and  which  can  be  fully  determined 
as  between  them,  then  either  one  or  more  of  the  defendants 
actually  interested  in  such  controversy  may  remove  said 
suit  into  the  district  court  of  the  United  States  for  the 
proper  district." 

This  is  the  class  of  removable  cases  commonly  spoken  of 
as  separable  controversies — a  class  which  has  been  much 
discussed  in  the  courts.  It  applies  only  to  controversies 
between  citizens  of  different  states,  so  that  controversies 
between  citizens  and  aliens  are  not  included.23 

In  this  class  of  cases,  although  the  citizenship  of  the  par- 
ties on  whom  the  right  of  removal  is  conferred  can  be  made 
to  appear  in  the  petition  for  removal,  and  need  not  neces- 
sarily appear  in  the  plaintiff's  pleading,  as  such  an  allega- 
tion is  not  a  part  of  any  system  of  pleading,  it  must  never- 
theless appear  from  the  plaintiff's  pleading  that  the  contro- 
versy which  it  is  desired  to  remove  is  a  separable  controver- 
sy. Its  capacity  of  severance  must  be  decided  solely  upon 
the  plaintiff's  pleading,  not  upon  the  petition  for  removal, 
nor  upon  the  defense  set  up.  There  may  be  separate  issues 
in  a  case,  but  they  do  not  constitute  separable  controver- 
sies. There  may  be  defenses  which  are  good  as  to  some, 
and  not  as  to  others,  but  they  do  not  make  separable  con- 
troversies.24 

The  courts  have  narrowed  very  much  the  cases  which 
are  removable  under  this  act.  As  has  been  stated  above, 
the  fact  that  the  issues  or  defenses  are  separate  does  not 
make  the  controversy  separate.  It  is  equally  well  settled 

23  Creagh  v.   Equitable  Life  Assurance  Society  of  United   States 
(C.  C.)  88  Fed.  1.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§ 
48,  59;   Cent.  Dig.  §  94. 

24  Fidelity  Ins.,  Trust  &  Safe  Deposit  Co.  v.  Huntington,  117  TJ.  S. 
280,  6  Sup.  Ct.  733,  29  L.  Ed.  898;    Putnam  v.  Ingraham,  114  U.  S. 
57,  5  Sup.  Ct.  746,  29  L.  Ed.  65 ;    Louisville  &  N.  R.  Co.  v.  Wangelin, 
132  U.  S.  599,  10  Sup.  Ct  203,  33  L.  Ed.  474;    Foster  v.  Coos  Bay 
Gas  &  Electric  Co.  (C.  C.)  185  Fed.  979.     See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §§  48,  61;   Cent.  Dig.  §§  94,  115. 


§    120)  SEPARABLE   CONTEOVEBSIES  331 

that  even  a  controversy  which  is  separable  does  not  give  a 
ground  of  removal  if  that  controversy  is  a  question  merely 
incidental  to  the  main  controversy  in  the  cause,  and  not  of 
itself  a  principal  controversy.  For  instance,  Graves  v.  Cor- 
bin  2B  was  a  bill  to  subject  partnership  assets  to  the  pay- 
ment of  debts,  and  to  set  aside,- as  fraudulent,  certain  judg- 
ments confessed  by  the  partnership.  It  was  neld  that  one 
of  these  judgment  creditors  could  not  remove  the  case,  as 
the  question  of  the  validity  of  his  judgment,  though  de- 
pending on  different  grounds,  was  a  mere  incident  to  the 
main  litigation,  which  was  to  wind  up  the  partnership  as- 
sets. 

So,  in  Torrence  v.  Shedd,28  which  was  a  partition  suit,  a 
dispute  between  two  of  the  parties  in  that  suit  as  to  their  rela- 
tive interests  in  the  share  of  one  of  these  parties  was  not  so 
separable  as  to  give  the  right  of  removal. 

In  Bellaire  v.  Baltimore  &  O.  R.  Co.27  which  was  a  pro- 
ceeding by  the  city  of  Baltimore  to  condemn  a  right  of 
way  for  a  street  across  a  strip  of  land,  to  which  the  owner 
and  the  lessee  were  made  parties,  it  was  held  that  the  les- 
see could  not  remove,  although  its  interests  would  be  sep- 
arately valued,  as  that  was  a  mere  incident  to  the  main 
question,  which  was  the  right  of  condemnation  at  all. 

In  Colburn  v.  Hill,28  which  was  a  creditors'  suit  to  wind 
up  a  corporation,  and  distribute  its  assets,  and  exclude  cer- 
tain defendants  from  sharing  in  the  assets  on  the  ground 
that  a  certain  contract  held  by  them  with  the  corporation 

26  132  TL  S.  571,  10  Sup.  Ct.  196,  33  L.  Ed.  462.  See,  also,  Miller 
v.  Clifford,  133  Fed.  880,  67  C.  C.  A.  52,  5  L.  R.  A.  (N.  S.)  49.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  %  52;  Cent.  Dig.  §§  102- 
105. 

26  144  U.  S.  527,  12  Sup.  Ct  726,  36  L.  Ed.  528.    See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  51;   Cent.  Dig.  §  101. 

27  146  U.  S.  117,  13  Sup.  Ct.  16,  36  L.  Ed.  910.     See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  51;   Cent.  Dig.  §  101. 

28  101  Fed.  500,  41  C.  C.  A.  467.    See  "Removal  of  Causes,"  Deo. 
Dig.  (Key-No.)  §  53;   Cent.  Dig.  § 


332  DISTRICT  COURT JURISDICTION   BY    REMOVAL     (Ch.  15 

was  invalid,  it  was  held  that  these  defendants  could  not 
remove  the  case  on  the  ground  of  a  separable  controversy. 

The  Supreme  Court  has  repeatedly  said  that,  in  order  to 
justify  a  removal  on  this  ground,  the  controversy  in  the 
suit  must  be  a  separate  and  distinct  cause  of  action,  on 
which  a  separate  suit  might  have  been  maintained  as  be- 
tween the  parties  therein  interested,  independent  of  the 
others.29 

Under  these  principles,  suits  on  joint  or  joint  and  several 
contractual  liabilities  are  not  removable  by  some  of  the  de- 
fendants. If.  the  plaintiff  elects  to  bring  his  suit  in  such  a 
shape  as  to  claim  a  joint  liability  against  the  defendants  on 
contract,  it  is  not  for  them  to  prevent  him  from  trying  his 
suit  in  his  own  way;  and  part  of  them  cannot,  therefore, 
obtain  a  removal  on  this  ground.30 

On  the  same  principle,  a  case  which  appears  from  the 
plaintiff's  declaration  to  be  a  joint  action  in  tort  against 
several  defendants  cannot  be  removed  by  one  of  those  de- 
fendants.31 

There  have  been  many  decisions  on  the  question  of  suits 
for  personal  injuries  where  both  the  defendant  corporation 
and  the  employe  causing  the  accident  are  sued.  In  such 
case,  if,  as  far  as  the  pleadings  show,  the  cause  of  action 
is  a  joint  one,  it  cannot  be  removed  by  one  of  the  two  de- 
fendants. This,  however,  though  to  a  certain  extent  a 

2  e  HYDE  v.  RUBLE,  104  U.  S.  407,  26  L.  Ed.  823;  Fraser  v. 
Jenuison,  106  U.  S.  191,  1  Sup.  Ct.  171,  27  L.  Ed.  131.  See  "Remov- 
al of  Causes,"  Dec.  Dig.  (Key-No.)  §  48;  Cent.  Dig.  §§  93,  94. 

so  Louisville  &  N.  R.  Co.  v.  Ide,  114  U.  S.  52,  5  Sup.  Ct.  735,  29  L. 
Ed.  63;  STONE  v.  SOUTH  CAROLINA,  117  U.  S.  430,  6  Sup.  Ct. 
799,  29  L.  Ed.  962;  Lewis  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (O. 
C.)  192  Fed.  654 ;  ante,  pp.  323,  324.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  A9;  Cent.  Dig.  §§  95-99. 

31  Pirie  v.  Tvedt,  115  U.  S.  41,  5  Sup.  Ct.  1034,  1161,  29  L.  Ed.  331; 
CHESAPEAKE  &  O.  RY.  CO.  v.  DIXON,  179  U.  S.  131,  21  Sup.  Ct 
67,  45  L.  Ed.  121 ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Dowell,  229  U.  S. 

102,  33  Sup.  Ct.  684,  57  L.  Ed.  ;  Stevenson  v.  Illinois  Cent.  R. 

Co.  (C.  C.)  192  Fed.  956.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  49;  Cent.  Dig.  §§  95-99. 


§    120)  SEPAEABLE    CONTROVERSIES  333 

question  of  pleading,  depends  upon  the  further  question 
whether  such  suits  are,  in  fact  and  in  law,  joint  suits  against 
the  employer  and  employe. 

In  Chesapeake  &  O.  Ry.  Co.  v.  Dixon,82  referred  to  in  a 
previous  connection,  the  Supreme  Court  was  careful  to 
base  its  opinion  upon  the  fact  that  the  declaration  alleged 
joint  negligence ;  and  the  decision  was  influenced  to  some 
extent  by  the  fact  that  in  Kentucky,  where  the  action  arose, 
the  decisions  were  that  a  joint  action  by  an  injured  party 
against  an  employer  and  employe  was  one  in  which  they 
were  jointly  liable.  But  in  Helms  v.  Northern  Pac.  R. 
Co.33  Judge  Amidon,  in  an  exceedingly  well  considered 
opinion,  reviewing  the  authorities,  including  the  above- 
named  Supreme  Court  case,  held  that  under  certain  circum- 
stances, at  least,  such  a  suit  would  not  be  a  suit  for  a  joint 
tort;  that  the  liability  of  a  master  and  servant  rested  on 
different  grounds;  and  that,  unless  it  appeared  from  the 
declaration,  or  at  least  was  consistent  with  it,  that  the  neg- 
ligence complained  of  was  such  a  negligence  as  gave  a 
joint  cause  of  action,  the  defendant  could  remove.  The 
case  was  a  suit  by  a  servant  against  the  fellow  servant  who 
caused  the  negligence,  and  the  corporation  who  employed 
them  both.  At  common  law  the  corporation  would  not 


as  179  U.  S.  131,  21  Sup.  Ct.  67,  45  L.  Ed.  121.  See,  also,  Southern 
Ry.  Co.  v.  Carson,  194  U.  S.  136,  24  Sup.  Ct.  609,  48  L.  Ed.  907; 
Alabama  G.  S.  R.  Co.  v.  Thompson,  200  U.  S.  206,  26  Sup.  Ct  161, 
50  L.  Ed.  441,  4  Ann.  Cas.  1147 ;  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
Bohon,  200  U.  S.  221,  26  Sup.  Ct.  166,  50  L.  Ed.  448,  4  Ann.  Cas. 
1152;  Southern  R.  Co.  v.  Miller,  217  U.  S.  209,  30  Sup.  Ct.  450,  54 
L.  Ed.  732;  Chicago,  B.  &  Q.  R.  Co.  v.  Willard,  220  U.  S.  413,  31 
Sup.  Ct.  460,  55  L.  Ed.  521 ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Schwyhart, 
227  U.  S.  184,  33  Sup.  Ct.  250,  57  L.  Ed. .  See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  49;  Cent.  Dig.  §§  95-99. 

ss  (C.  C.)  120  Fed.  389.  The  question  is  influenced  greatly  by  the 
consideration  whether  under  the  law  of  the  state  the  suit  would  be 
a  joint  one.  McAllister  v.  Chesapeake  &  O.  R.  Co.  (D.  C.)  198  Fed. 
660 ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Schwyhart,  227  U.  S.  184,  33  Sup. 
Ct.  250,  57  L.  Ed.  .  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  49;  Cent.  Dig.  §§  95-99. 


334  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  15 

have  been  liable,  on  account  of  the  fellow-servant  principle, 
but  was  made  liable  by  a  state  statute.  Consequently  he 
held  that  the  liability  of  the  defendant  employe  was  on  the 
ground  of  negligence,  and  that  of  the  company  on  the  lan- 
guage of  the  statute,  which  did  not  necessarily  require  neg- 
ligence, and  hence  that  the  causes  of  action  were  separate, 
and  that  the  case  could  be  removed. 

Where  the  grounds  of  negligence  against  the  company 
and  employe  are  different,  especially  where  the  ground  as 
to  one  is  statutory,  there  is  a  separable  controversy.34 

In  separable  controversies  the  principle  also  applies  that 
the  right  of  removal  depends  upon  those  who  are  necessary 
parties,  grouped  or  rearranged  according  to  the  actual  in- 
terests of  the  parties,  and  not  according  to  the  fancy  of 
the  pleader.35 

A  party  is  not  a  necessary  party  who  has  not  been  served 
with  process  and  brought  before  the  court  when  the  plain- 
tiff proceeds  to  trial  against  the  one  in  court.  In  Berry  v. 
St.  Louis  &  S.  F.  R.  Co.,36  which  was  a  suit  against  a  resi- 
dent and  nonresident,  and  in  which  process  was  not  serv- 
ed on  the  resident  defendant,  it  was  held  that  the  nonresi- 
dent could  remove  the  case,  though  the  liability  asserted 

34  Lockard  v.  St.  Louis  &  S.  F.  R.  Co.  (C.  C.)  167  Fed.  675 ;  Evans- 
berg  v.  Insurance  Stove  Range  &  Foundry  Co.  (C.  C.)  168  Fed.  1001 ; 
Jackson  v.  Chicago,  R.  I.  &  P.  R.  Co.,  178  Fed.  432,  102  C.  C.  A. 
159 ;  Marach  v.  Columbia  Box  Co.  (C.  C.)  179  Fed.  412 ;  Shaver  v. 
Pacific  Coast  Condensed  Milk  Co.  (C.  C.)  185  Fed.  316;  Nichols  v. 
Chesapeake  &  O.  R.  Co.,  195  Fed.  913,  115  C.  C.  A.  601;  Cayce  v. 
Southern  R.  Co.  (D.  C.)  195  Fed.  786.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  49;  Cent.  Dig.  §§  95-99. 

ss  Geer  v.  Mathieson  Alkali  Works,  190  U.  S.  428,  23  Sup.  Ct  807, 
47  L.  Ed.  1122;  Lamm  v.  Parrott  Silver  &  Copper  Co.  (C.  C.)  Ill 
Fed.  241;  Ireton  v.  Pennsylvania  Co.,  185  Fed.  84,  107  C.  C.  A.  304. 
8ee  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  //S;  Cent.  Dig.  §& 
93,  9.'/. 

so  (C.  C.)  118  Fed.  911;  ante,  p.  318.  But  there  is  some  conflict, 
though  the  text  states  in  the  opinion  of  the  author  the  better  doc- 
trine. Compare  Armstrong  v.  Kansas  City  Southern  R.  Co.  (C.  C.) 
192  Fed.  608.  See  "Removal  of  Causes"  Dec.  Dig.  (Key-No.)  §  40; 
Cent.  Dig.  §§  95-99. 


§    120)  SEPARABLE    CONTROVERSIES  335 

was  joint  and  several,  as  the  plaintiff,  by  not  bringing  the 
resident  defendant  into  court  and  pushing  his  case  against 
the  other,  had  voluntarily  elected  to  make  the  controversy 
separable. 

In  order  to  sustain  a  removal  on  the  ground  of  separable 
controversy,  it  is  necessary — as,  indeed,  is  stated  in  the 
statute — that  the  controversy  must  be  fully  determinable 
as  between  the  parties  to  that  controversy.37 

The  following  are  instances  of  controversies  held  sepa- 
rable : 

A  suit  to  avoid  an  alleged  fraudulent  transfer  between 
two  corporations,  to  which  the  directors  of  one  of  the  cor- 
porations were  made  parties,  though  not  for  the  purpose 
of  any  actual  relief  against  them,  was  held  removable, 
though  the  plaintiff  and  some  of  the  directors  were  citizens 
of  the  same  state.38 

A  suit  against  a  corporation  alleged  to  be  insolvent,  and 
a  second  defendant  alleged  to  have  assumed  its  debts,  was 
held  to  be  removable  by  the  second  defendant.39 

A  suit  involving  the  liability  of  the  officers  of  a  corpora- 
tion for  damages  for  alleged  misconduct  as  such  officers, 
no  conspiracy  or  concerted  action  among  them  being  al- 
leged, was  held  removable  by  some  of  these  officers.40 

37  East  Tennessee,  V.  &  G.  R.  Co.  v.  Grayson,  119  U.  S.  240,  7  Sup. 
Ct  190,  30  L.  Ed.  382 ;  Wilson  v.  Oswego  Tp.,  151  U.  S.  56,  14  Sup. 
Ct.  259,  38  L.  Ed.  70;  Merchants'  Cotton  Press  &  Storage  Co.  v.  In- 
surance Co.  of  N.  A.,  151  U.  S.  368,  14  Sup.  Ct.  367,  38  L.  Ed.  195. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §  109. 

ss  Geer  v.  Mathieson  Alkali  Works,  190  U.  S.  428,  23  Sup.  Ct.  807, 
47  L.  Ed.  1122.  Also  in  a  foreclosure  suit,  an  attack  by  mortgagor 
and  mortgagee  on  the  validity  of  a  prior  mortgage  is  removable  by 
the  prior  mortgagee.  Fritzlen  v.  Boatmen's  Bank.  212  U.  S.  364,  29 
Sup.  Ct.  366,  53  L.  Ed.  551.  See  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §§  48,  53;  Cent.  Dig.  §§  93,  94,  104. 

39  Mecke  v.  Valleytown  Mineral  Co.,  93  Fed.  697,  35  C.  C.  A.  151. 
See,  as  analogous,  Stimson  v.  United  Wrapping  Mach.  C\>.  (C.  C.)  156 
Fed.  298.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  50;  Cent. 
Dig.  §  100. 

*o  Toutsey  v.  Hoffman  (C.  C.)  108  Fed.  693.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  49;  Cent.  Dig.  §§  95-99. 


336  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  15 

A  suit  against  two  defendants  in  tort  on  entirely  discon- 
nected grounds  was  held  to  be  removable.41 

A  suit  by  a  stockholder  against  his  corporation  and  a 
second  corporation,  attacking  the  management  of  the  first 
corporation  by  the  second,  was  held  removable  by  the  sec- 
ond, as  the  cause  of  action  asserted  was  one  in  which  the 
stockholder  and  his  own  corporation  were  practically,  in- 
terested alike,  and  against  the  second.42 

A  bill  to  quiet  title  against  several  defendants  not  claim- 
ing through  any  common  source  was  held  removable  by 
some  of  these  defendants.43 

On  the  other  hand,  in  Little  v.  Giles 44  a  suit  to  quiet 
title,  which  alleged  that  the  defendants  were  conspirators 
in  their  efforts  to  cloud  the  title,  was  held  not  to  be  a  sep- 
arable controversy. 

The  parties  entitled  to  remove  on  the  ground  of  a  separa- 
rable  controversy  are,  in  the  language  of  the  statute,  either 
one  or  more  of  the  defendants  actually  interested.45 

Does  This  Apply  to  Resident  Defendants? 

There  is  a  difference  of  decision  on  the  question  whether 
this  right  of  removal  under  the  separable  controversy 
clause  is  conferred  on  any  defendants,  or  simply  on  non- 
resident defendants.  On  the  one  hand,  it  is  urged  that  the 
reason  for  giving  the  removal  is  the  same  as  in  any  other 
case  where  it  is  limited  to  nonresidents,  and  that  this  must 
have  been  the  policy  of  Congress.  On  the  other  hand,  it 

41  Coker  v.  Monaghan  Mills  (C.  C.)  110  Fed.  803.    See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  50;   Cent.  Dig.  §  100. 

42  Lamm  v.  Parrott  Silver  &  Copper  Co.  (C.  C.)  Ill  Fed.  241.    See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  48;   Cent.  Dig.  §§  93,  94. 

43  Carothers  v.  McKinley  Mining  &  Smelting  Co.  (C.  C.)  116  Fed. 
947;  McMullen  v.  Halleck  Cattle  Co.  (C.  C.)  193  Fed.  282.    See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  52;    Cent.  Dig.  §§  102-105. 

44  118  TJ.  S.  596,  7  Sup.  Ct.  32,  30  L.  Ed.  269.     See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §§  52,  55;   Cent.  Dig.  §§  102-105. 

4o  Rand  v.  Walker,  117  U.  S.  340,  6  Sup.  Ct.  769,  29  L.  Ed.  907. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig.  §§ 
112,  113. 


§   120)  SEPARABLE   CONTROVERSIES  337 

is  urged  that  the  language  of  the  statute  does  not  limit  the 
right  to  nonresident  defendants.46 

A  careful  perusal  of  the  statute  would  seem  to  indicate 
that  the  authorities  holding  any  defendant,  whether  resi- 
dent or  not,  entitled  to  remove,  best  accord  with  its  lan- 
guage. Where  the  language  of  the  statute  itself  is  plain, 
it  is  unnecessary  to  resort  to  rules  of  construction  or  pol- 
icy. A  legislature  is  presumed  to  have  said  what  it  meant, 
and  to  have  meant  what  it  said.  When  this  entire  section 
is  examined,  it  is  to  be  observed  that  the  first  section,  which 
gives  the  right  of  removal  in  federal  questions,  confers  it 
upon  the  defendant  or  defendants  whether  they  are  resident 
or  not.  Then  the  second  section,  which  gives  the  right  of 
removal  on  the  ground  of  citizenship,  gives  the  right  only 
to  the  defendant  or  defendants  who  are  nonresidents.  Then 
comes  the  third  clause,  which  is  the  one  under  discussion, 
and  which  simply  speaks  o-f  the  defendants,  and  says  noth- 
ing about  their  residence. 

Then  the  fourth  clause,  conferring  the  right  in  cases  of 
prejudice  or  local  influence,  limits  it  to  the  defendant  who 
is  a  citizen  of  another  state.  Congress,  in  thus  varying"  the 
language  in  these  different  sentences  of  the  same  section, 
must  be  presumed  to  have  done  so-  intentionally ;  and  it  is 
beyond  the  purview  of  the  courts  to  read  into  its  act  a  sen- 
tence that  it  has  deliberately  inserted  in  one  place  and  omit- 
ted in  another.  In  the  judgment  of  the  author,  therefore, 
the  defendant,  whether  resident  or  not,  ought  to  have  the 
right  of  removal  on  this  ground. 

The  effect  of  the  removal  of  a  separable  controversy  is  to 
take  with  it  not  simply  that  controversy,  but  the  entire  suit. 
It  was  not  the  intent  of  Congress  to  split  a  suit  up  into 
different  parts,  and  leave  it  to  be  considered  by  different 
courts;  and  the  express  language  of  the  act  is  that  when 

4«  Stanbrough  v.  Cook  (C.  C.)  38  Fed.  369,  3  L.  R.  A.  400;    Thurber 
v.  Miller,  67  Fed.  371,  14  C.  C.  A.  432.     See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  60;   Cent.  Dig.  §  114. 
HUGHES  FED.PK.(2o  ED.)— 22 


338  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  15 

a  controversy  exists  in  a  suit,  and  that  is  removed,  the  suit 
itself  goes  with  it.47 

And  this  is  true  though  the  effect  may  be  to  take  into 
the  federal  court,  along  with  this  separable  controversy, 
other  grounds  of  action  of  which  the  court  would  not  have 
had  jurisdiction,  had  they  been  brought  in  the  federal  court 
independently.48 


REMOVAL  ON  GROUND  OF  PREJUDICE  OR  LO- 
CAL INFLUENCE 

121.  This  ground  entitles  the  nonresident  defendant  to  re- 
move, but  only  on  proof  of  the  existence  of  such 
prejudice  or  local  influence. 

The  fourth  sentence  of  section  28  of  the  Judicial  Code 
provides  as  follows :  "And  where  a  suit  is  now  pending,  or 
may  be  hereafter  brought,  in  any  state  court,  in  which  there 
is  a  controversy  between  a  citizen  of  the  state  in  which  the 
suit  is  brought  and  a  citizen  of  another  state,  any  defend- 
ant, being  such  citizen  of  another  state,  may  remove  such 
suit  into  the  district  court  of  the  United  States  for  the 
proper  district,  at  any  time  before  the  trial  thereof,  when 
it  shall  be  made  to  appear  to  said  district  court  that  from 
prejudice  or  local  influence  he  will  not  be  able  to  obtain 
justice  in  such  state  court,  or  in  any  other  state  court  to 
which  the  said  defendant  may,  under  the  laws  of  the  state, 
have  the  right,  on  account  of  such  prejudice  or  local  in- 
fluence, to  remove  said  cause :  Provided,  that  if  it  further 
appear  that  said  suit  can  be  fully  and  justly  determined  as 
to  the  other  defendants  in  the  state  court,  without  being 

*7  BARNEY  v.  LATHAM,  103  U.  S.  205,  26  L.  Ed.  514 ;  Connell  v. 
Smiley,  156  U.  S.  335,  15  Sup.  Ct.  353,  39  L.  Ed.  443.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig.  §  110. 

48  Hoge  v.  Canton  Insurance  Office  of  Hong  Kong  (C.  C.)  103  Fed. 
513.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig. 


§    121)  PBEJUDICE   OB   LOCAL  INFLUENCE  339 

affected  by  such  prejudice  or  local  influence,  and  that  no 
party  to  the  suit  will  be  prejudiced  by  a  separation  of  the 
parties,  said  district  court  may  direct  the  suit  to  be  re- 
manded, so  far  as  relates  to  such  other  defendants,  to  the 
state  court,  to  be  proceeded  with  therein." 

This  provision  of  the  Judicial  Code  repeals  the  previous 
acts  on  the  subject,  as  the  act  of  August  13,  1888,  had  been 
held  to  supersede  the  acts  which  preceded  it.49 

The  language  of  this  sentence  is  quite  different  from 
those  of  the  three  preceding  sentences.  The  first  limits  the 
removal  of  cases  on  the  ground  of  a  federal  question  to 
those  of  which  the  district  courts  are  given  original  juris- 
diction by  the  preceding  section.  The  second,  regulating 
the  removal  of  entire  controversies  on  the  ground  of  citi- 
zenship, also  applies  only  to  those  cases  of  which  the  dis- 
trict courts  are  given  jurisdiction  by  the  preceding  section. 
The  third,  authorizing  removal  on  the  ground  of  a  separa- 
ble controversy,  limits  such  right  to  "any  suit  mentioned 
in  this  section,"  which  amounts  to  the  same  thing.  The 
fourth  contains  no  such  qualifying  clause,  and,  independent 
of  authority,  it  may  be  questioned  whether  this  qualifica- 
tion was  intended  to  be  inserted.  However,  the  Supreme 
Court,  in  Re  Pennsylvania  Co.,50  in  which  the  question  in- 
volved was  whether  the  two  thousand  dollar  limit  applied 
to  causes  removed  on  the  ground  of  prejudice  or  local  in- 
fluence, construing  the  acts  preceding  the  Code,  held  that 
it  was  the  intention  of  Congress  to  limit  these  causes,  also, 
to  those  of  which  the  court  would  have  had  original  juris- 
diction. The  court  construed  the  first  part  of  the  sentence, 
"where  a  suit  is  now  pending"  to  be  equivalent  to  the  words 
"and  when  in  any  suit  mentioned  in  this  section."  The  re- 


49  risk  v.  Henarie,  142  U.  S.  459,  12  Sup.  Ct.  207,  35  L.  Ed.  1080; 
Hanrick  v.  Hanrick,  153  U.  S.  192,  14  Sup.  Ct.  835,  38  L.  Ed.  685. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §§  2,  S. 

50  137  U.  S.  451,  11  Sup.  Ct  141,  34  L.  Ed.  738.    See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-\o.)  §  11;  Cent.  Dig.  §§  29-31. 


340  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  15 

enactment  of  them  in  the  Judicial  Code  indicates  the  inten- 
tion of  Congress  to  adopt  this  construction. 

The  Parties 

The  controversy  removable  under  the  language  of  the 
statute  is  "a  controversy  between  a  citizen  of  the  state  in 
which  the  suit  is  brought  and  a  citizen  of  another  state." 
Hence  controversies  between  citizens  and  aliens  are  not  re- 
movable on  this  ground.51 

In  reference  to  the  parties  plaintiff,  the  word  is  used  col- 
lectively, and  under  the  principles  established  in  other  cases 
of  jurisdiction,  the  plaintiffs,  where  there  are  more  than  one, 
must  be  citizens  of  the  state  where  the  suit  is  brought.52 

Whether  all  the  plaintiffs  and  all  the  defendants  must  be 
different  in  citizenship  is  a  question  on  which  there  was  a 
violent  conflict  of  authority.  Under  the  removal  acts  pre- 
vious to  the  present,  this  was  necessary.53 

But  the  language  of  the  present  section  is  that  "any  de- 
fendant" may  remove  the  case.  Influenced  by  this  lan- 
guage, there  is  a  line  of  authorities  to  the  effect  that  any 
defendant  who  is  a  citizen  of  another  state  from  that  in 
which  the  suit  is  brought  can  remove  it,  though  there  are 
other  defendants  whose  citizenship  is  the  same  as  that  of 
the  plaintiff.54 

On  the  other  hand,  there  are  authorities  which  hold  that 
the  controversy  itself  must  be  one  in  which  all  the  plain- 
tiffs are  of  a  different  citizenship  from  all  of  the  defendants, 

si  Grand  Trunk  R.  Co.  v.  Twitchell,  59  Fed.  727,  8  C.  C.  A.  237. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  67;  Cent.  Dig.  §§ 
120-12^. 

52  Gann  v.  Northeastern  R.  Co.  (C.  C.)  57  Fed.  417.    See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  67;   Cent.  Dig.  §  120. 

53  Rosenthal  v.  Coates,  148  U.  S.  142,  13  Sup.  Ct.  576,  37  L.  Ed. 
399.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig. 
§§  122,  123. 

S*  Montgomery  County  v.  Cochran  (C.  C.)  116  Fed.  985 ;  Jackson 
&  Sharp  Co.  v.  Pearson  (C.  C.)  60  Fed.  113 ;  Bonnet  v.  Meikle  (C.  C.) 
77  Fed.  485.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  68; 
Cent.  Dig.  §§  122,  123. 


§   121)  PREJUDICE   OR  LOCAL  INFLUENCE  341 

and  that,  if  the  controversy  is  of  that  character,  then  any 
nonresident  defendant  may  remove.55 

The  question  has  recently  been  set  at  rest  by  the  Su- 
preme Court,  which  holds  that  removals  on  the  ground  of 
local  prejudice  must,  like  those  under  the  rest  of  the  sec- 
tion, be  suits  originally  cognizable  in  the  district  court,  and 
are  governed  by  the  same  principles  as  to  parties.56 

Conditions  on  Which  Removal  is  Allowed — Procedure 

The  statute  gives  the  right  of  removal  when  it  shall  be 
made  to  appear  to  said  district  court  that  from  prejudice  or 
local  influence  he  will  not  be  able  to  obtain  justice  in  such 
state  court  or  in  any  other  state  court  to  which  he  is  en- 
titled to  remove  the  case. 

There  is  nothing  in  the  statute  to  show  how  this  must 
be  made  to  appear.-  The  better  authority  is  that  a  petition 
should  be  filed  in  the  federal  court  alleging  not  merely  the 
petitioner's  belief  or  the  bare  statement  of  prejudice  or 
local  influence,  but  setting  out  such  facts  as  would  show 
it.57 

It  then  becomes  a  question  for  the  district  court  whether 
to  require  proof,  and  what  kind  of  proof  should  be  required. 
The  court  must  be  not  morally,  but  legally  satisfied  of  the 
existence  of  such  prejudice  or  local  influence;  and  it  may, 
in  its  discretion,  allow  proof  of  such  fact  by  affidavit.68 

On  this  petition  in  the  federal  court  an  order  is  obtained 

66  Campbell  v.  Milliken  (C.  C.)  119  Fed.  982.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§  122,  123. 

60  Cochran  v.  Montgomery  County,  199  U.  S.  260,  26  Sup.  Ct  58, 
50  L.  Ed.  182,  4  Ann.  Cas.  451,  reversing  Montgomery  County  v. 
Cochran  (C.  C.)  116  Fed.  985,  and  following  the  reasoning  of  In  re 
Pennsylvania  Co.,  137  U.  S.  451,  11  Sup.  Ct.  141,  34  L.  Ed.  738.  See, 
also,  Armstrong  v.  Kansas  City  Southern  R.  Co.  (C.  C.)  192  Fed.  608. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§ 
122,  123. 

6?  Schwenk  &  Co.  v.  Strang,  59  Fed.  209,  8  C.  C.  A.  92;  Collins  v. 
Campbell  (C.  C.)  62  Fed.  850;  Ellison  v.  Louisville  &  N.  R.  Co.,  112 
Fed.  805,  50  C.  C.  A.  530.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  91;  Cent.  Dig.  §  202. 

68  City  of  Detroit  v.  Detroit  City  R.  Co.  (C.  C.)  54  Fed,  1 ;    In  re 


342  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  15 

to  remove  the  case,  which  order  should  be  filed  in  the  state 
court.59 

Then,  if  the  plaintiff  desires  to  contest  the  question  of 
prejudice  or  local  influence,  he  can  do  so  by  a  motion  to  re- 
mand to  the  state  court,  on  which  the  court  will  hear  such 
evidence  as  it  may  think  material.60 

The  present  statute  differs  from  the  original  act  in  re- 
quiring proof  not  merely  that  the  defendant  cannot  obtain 
justice  in  the  state  where  the  suit  is  pending,  but  in  any 
other  state  court  to  which  he  has  the  right  to  remove  it. 
This  qualifying  clause,  however,  only  applies  where  the 
plaintiff  has  the  right  to  such  change  of  venue  in  the  state 
court,  not  where  it  is  discretionary  with  the  state  court 
whether  to  allow  the  change  of  venue  or  not.61 

The  statute  seems  to  draw  a  distinction  between  preju- 
dice and  local  influence,  and  to  allow  removal  for  either  of 
these  two  causes.62 

It  does  not  mean  that  the  petitioner  must  prove,  as  an 
actual  fact,  that  he  cannot  obtain  justice.  Such  a  require- 
ment would  practically  make  the  law  a  dead  letter.  He 
need  only  prove  the  existence  of  such  prejudice  or  local  in- 
fluence, not  that  the  court  or  jury  was  actually  affected  by 
it.63 

Proof  that  a  decision  in  favor  of  the  petitioner  would  af- 
fect the  judge's  chances  of  re-election  has  been  held  suffi- 

Pennsylvania  Co.,  137  U.  S.  451,  11  Sup.  Ct.  141,  34  L.  Ed.  738.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  91;  Cent.  Dig.  §  202. 

so  Pennsylvania  Co.  v.  Bender,  148  U.  S.  255,  13  Sup.  Ct.  591,  37 
L.  Ed.  441.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  90,  91; 
Cent.  Dig.  §  202. 

eo  Dennison  v.  Brown  (C.  C.)  38  Fed.  535;  Amy  v.  Manning  (C.  C.) 
38  Fed.  868.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  63, 
107;  Cent.  Dig.  §§  117,  178,  225-234. 

61  Rike  v.  Floyd  (C.  C.)  42  Fed.  247;    City  of  Tacoma  v.  Wright 
(C.  C.)  84  Fed.  836;   Parker  v.  Vanderbilt  (C.  C.)  136  Fed.  246.    See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  91;   Cent.  Dig.  §  202. 

62  Neale  v.  Foster  (C.  C.)  31  Fed.  53.    See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  £3;   Cent.  Dig.  §  117. 

es  City  of  Tacoma  v.  Wright  (C.  C.)  84  Fed.  836.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §§  62,  63;  Cent.  Dig.  §§  116,  117. 


§   122)  STATE  DENIAL  OF   EQUAL  CIVIL  RIGHTS  343 

cient,  and  it  applies  whether  the  case  is  triable  by  a  judge 
or  a  jury.64 

The  existence  of  such  prejudice  or  local  influence  is 
enough  to  justify  the  removal,  whether  such  feeling  was, 
as  a  matter  of  fact,  justified,  under  the  circumstances,  or 
not.88 


REMOVAL  BECAUSE  OF  STATE  DENIAL  OF 
EQUAL  CIVIL  RIGHTS 

122.  The  denial  of  civil  rights  by  state  legislative  authority 
gives  the  right  of  removal  to  the  party  so  injured. 

Section  31  of  the  Judicial  Code  provides  as  follows: 
"When  any  civil  suit  or  criminal  prosecution  is  commenced 
in  any  state  court,  for  any  cause  whatsoever,  against  any 
person  who  is  denied  or  cannot  enforce  in  the  judicial  tri- 
bunals of  the  state,  or  in  the  part  of  the  state  where  such 
suit  or  prosecution  is  pending,  any  right  secured  to  him  by 
any  law  providing  for  the  equal  civil  rights  of  citizens  of 
the  United  States,  or  of  all  persons  within  the  jurisdiction 
of  the  United  States,  or  against  any  officer,  civil  or  mili- 
tary, or  other  person,  for  any  arrest  or  imprisonment  or 
other  trespasses  or  wrongs  made  or  committed  by  virtue 
of  or  under  color  of  authority  derived  from  any  law  pro- 
viding for  equal  rights  as  aforesaid,  or  for  refusing  to  do 
any  act  on  the  ground  that  it  would  be  inconsistent  with 
such  law,  such  suit  or  prosecution  may,  upon  the  petition 
of  such  defendant,  filed  in  said  state  court  at  any  time  be- 
fore the  trial  or  final  hearing  of  the  cause,  stating  the  facts 

«4  City  of  Detroit  v.  Detroit  City  R.  Co.  (C.  C.)  54  Fed.  1 ;  Mont- 
gomery County  v.  Cochran  (C.  C.)  116  Fed.  985  (reversed  on  the  juris- 
dictional  question  Cochran  v.  Montgomery  County,  199  U.  S.  260,  26 
Sup.  Ct  58,  50  L.  Ed.  182,  4  Ann.  Gas.  451).  See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §§  62,  63;  Cent.  Dig.  §§  116,  117. 

«B  Bartlett  v.  Gates  (C.  C.)  117  Fed.  362.  See  "Removal  of  Caw- 
es,"  Dec.  Dig.  (Key-No.)  §§  62,  6S;  Cent.  Dig.  §§  116,  117. 


344  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  15 

and  verified  by  oath,  be  removed  for  trial  into  the  next 
district  court  to  be  held  in  the  district  where  it  is  pend- 
ing. *  *  *" 

The  primary  object  of  this  provision  was  the  protection 
of  the  colored  race  in  the  civil  rights  conferred  upon  them 
as  a  consequence  of  the  Civil  War.  In  its  language,  how- 
ever, it  is  ample  to  cover  any  deprivation  of  equal  civil 
rights,  and  is  by  no  means  limited  to  the  colored  race.  The 
main  rights  which  it  is  intended  to  cover,  however,  are 
those  rights  conferred  by  the  fourteenth  amendment,  and 
the  acts  of  Congress  passed  in  pursuance  thereof.  The 
right  to  authorize  removal  from  a  state  court  by  virtue  of 
this  statute  is  within  the  constitutional  power  of  Con- 
gress.66 

The  essential  principle  to  bear  in  mind  under  this  section 
is  that  it  alludes  to  state  legislation,  not  to  the  mere  prac- 
tice or  administration  by  state  officers  or  courts  of  state 
laws  which  show  no  intent  to  discriminate  upon  their  face. 
This  has  been  repeatedly  decided  by  the  Supreme  Court. 

Strauder  v.  West  Virginia  67  was  a  criminal  prosecution 
against  a  colored  man,  removed  by  him  under  this  act  be- 
cause the  West  Virginia  statute  provided  upon  its  face  that 
only  white  persons  should  be  summoned  as  jurors.  The 
court  upheld  the  right  of  removal. 

On  the  other  hand,  Virginia  v.  Rives  68  was  a  prosecu- 
tion in  a  Virginia  state  court  against  a  negro  for  murder. 
The  Virginia  laws  regulating  the  summoning  of  jurors  did 
not  contain  any  provision  limiting  them  to  the  white  race, 
but  it  was  charged  that  the  uniform  practice  of  the  state 

ee  Strauder  v.  West  Virginia,  100  U.  S.  303,  25  L.  Ed.  664.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §  3. 

67  100  U.  S.  303,  25  L.  Ed.  664.  Bee  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  127;-  "Criminal  Law,"  Cent.  Dig. 
§198. 

es  100  U.  S.  313,  25  L.  Ed.  667.  See,  also,  Kentucky  v.  Powers,  201 
U.  S.  1,  26  Sup.  Ct.  387,  50  L.  Ed.  633,  5  Ann.  Cas.  692,  which  con- 
tains a  thorough  review  of  the  authorities.  See  "Removal  of  Caus- 
es" Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  127. 


§   122)  STATE   DENIAL  OF  EQUAL  CIVIL  BIGHTS  345 

officers  was  to  summon  only  white  men  upon  the  jury. 
The  Supreme  Court  denied  the  right  of  removal  in  such 
case,  because  the  discrimination  was  not  by  the  state  in 
its  legislation,  but  by  the  officers  of  the  state  in  their  prac- 
tice under  it. 

If  the  state  legislation  charged  to  bring  about  the  dis- 
crimination is  in  form  a  dead  letter,  then  the  right  of  re- 
moval does  not  exist.  In  Neal  v.  Delaware  69  the  Delaware 
Constitution  of  1831,  limiting  the  summoning  of  jurors  to 
white  persons,  was  still  in  force,  but  the  Delaware  courts 
had  held  that  the  amendments  to  the  federal  Constitution 
adopted  after  the  war  practically  amended  their  state  Con- 
stitution, also,  although  there  had  never  been  a  state  con- 
vention formally  amending  it.  The  Supreme  Court  held 
in  such  case  that  the  right  of  removal  did  not  exist. 

In  Bush  v.  Kentucky  70  the  state  act  which  attempted  to 
discriminate  in  the  summoning  of  jurors  had  been  held  by 
such  court  to  be  unconstitutional,  but  had  never  been  for- 
mally repealed.  The  Supreme  Court  held  that  a  petition 
to  remove  as  to  acts  after  the  decision  of  the  state  Supreme 
court  holding  the  law  invalid  could  not  be  sustained. 

Under  this  principle  that  the  right  is  given  only  against 
state  legislation,  and  not  against  the  mere  administration 
of  the  state  law,  there  is  no  ground  of  removal  under  this 
act  from  the  fact,  even  if  proved,  that  there  exists  a  per- 
sonal or  class  prejudice  against  the  obnoxious  race.  Such 
a  case  is  not  provided  for  where  the  parties  are  citizens  of 
the  same  state.71 

The  fact  that  the  state  is  suing  in  its  own  courts  does 
not  create  any  such  inequality  or  denial  of  equal  protection 

«e  103  IT.  S.  370,  26  L.  Ed.  567.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  10;  Cent.  Dig.  §  127. 

70107  U.  S.  110,  1  Sup.  Ct.  625,  27  L.  Ed.  354.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  127. 

7i  Gibson  v.  Mississippi,  162  U.  S.  565,  16  Sup.  Ct  904,  40  L.  Ed. 
1075 ;  Texas  v.  Gaines,  Fed.  Cas.  No.  13,847.  See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  127. 


346  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  15 

of  its  laws  as  to  authorize  the  right  of  removal  under  this 
act.72 

People  of  New  York  v.  Bennett 73  reviews  the  decisions 
on  this  subject.  It  held  that  the  New  York  statute  of 
1895  against  bookmaking  and  pool  selling  in  connection 
with  horse  racing  did  not  constitute  a  denial  of  the  equal 
protection  of  the  laws,  from  the  fact  that  it  made  things 
offenses  if  committed  at  one  place,  when  they  would  not 
be  if  committed  at  another. 


REMOVAL  OF  SUITS  AGAINST  OFFICERS  OR 

PERSONS  ENFORCING  THE  INTERNAL 

REVENUE  LAWS 

123.  Suits  in  state  courts,  whether  civil  or  criminal,  against 
officers  or  others  acting  under  federal  authority  in 
enforcing  the  revenue  laws,  are  removable  by 
them. 

The  first  part  of  section  33  of  the  Judicial  Code  T4  pro- 
vides as  follows :  "When  any  civil  suit  or  criminal  prose- 
cution is  commenced  in  any  court  of  a  state  against  any 
officer  appointed  under  or  acting  by  authority  of  any  rev- 
enue law  of  the  United  States  now  or  hereafter  enacted,  or 
against  any  person  acting  under  or  by  authority  of  any 
such  officer,  on  account  of  any  act  done  under  color  of  his 
office  or  of  any  such  law,  or  on  account  of  any  right,  title, 
or  authority  claimed  by  such  officer  or  other  person  under 
any  such  law;  or  is  commenced  against  any  person  holding 
property  or  estate  by  title  derived  from  any  such  officer, 

72  State  of  Alabama  v.  Wolff e  (C.  C.)  18  Fed.  836.    See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  70;   Cent.  Dig.  §  127. 

73  (C.  C.)  113  Fed.  515.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  70;  Cent.  Dig.  §  127;   "Criminal  Law,"  Cent.  Dig.  §  198. 

74  Act  March  3,  c.  231,  36  Stat.  1097  (U.  S.  Comp.  St  Supp.  1911,  p. 
144). 


§    123)      ENFORCEMENT  OF  INTERNAL  REVENUE  LAWS          347 

and  affects  the  validity  of  any  such  revenue  law;  or  when 
any  suit  is  commenced  against  any  person  for  or  on  ac- 
count of  anything  done  by  him  while  an  officer  of  either 
house  of  Congress  in  the  discharge  of  his  official  duty,  in 
executing  any  order  of  such  house,  the  said  suit  or  prose- 
cution may,  at  any  time  before  the  trial  or  final  hearing 
thereof,  be  removed  for  trial  into  the  district  court  next 
to  be  holden  in  the  district  where  the  same  is  pending,  up- 
on the  petition  of  such  defendant  to  said  district  court." 

The  object  of  this  statute  is  to  protect  federal  officers  in 
performing  their  duties  under  the  revenue  laws  against 
suits  in  state  courts,  civil  or  criminal,  on  account  of  acts 
done  while  acting  in  that  capacity.  This  provision  is  con- 
stitutional.76 

It  applies  to  suits  commenced  in  a  state  court.  When 
the  proceeding  is  a  criminal  proceeding  in  which  an  indict- 
ment is  necessary,  it  is  not  supposed  to  be  commenced  until 
an  indictment  has  been  found  by  the  grand  jury  of  the 
state.  A  preliminary  examination  before  a  magistrate  un- 
der such  circumstances  cannot  be  removed,  because  it  may 
be  that,  when  sent  on  to  the  grand  jury,  an  indictment 
would  not  be  found,  and  it  could  not  have  been  the  intent 
of  Congress  to  place  on  the  federal  grand  juries  the  burden 
of  finding  indictments  under  state  laws.76 

There  are,  however,  many  cases  which  can  be  commenced 
without  any  indictment  at  all.  For  instance,  under  the 
criminal  laws  of  Virginia,  magistrates  have  original  juris- 
diction of  a  large  class  of  misdemeanors,  and  try  them  as 
a  court  of  original  jurisdiction,  not  as  a  mere  examining 
court.  A  prosecution  of  this  sort  against  a  federal  officer 
for  acts  contemplated  by  the  section  above  quoted  is  re- 

TB  Tennessee  v.  Davis,  100  TL  S.  257,  25  L.  Ed.  648.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §  3. 

i «  Virginia  v.  Paul,  148  U.  S.  107,  13  Sup.  Ct.  536,  37  L.  Ed.  386. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig. 
«50. 


348  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  15 

movable,  though  the  magistrate's  court  may  not  be  a  court 
of  record.77 

The  prosecutions  removable  from  the  state  court  are  for 
acts  as  an  officer  of  the  United  States  in  administering  the 
revenue  laws.78 

It  includes  not  only  regular  officers  like  marshals  or  dep- 
uty marshals,  but  soldiers  of  the  army  detailed  to  assist,  or 
men  summoned  as  a  posse  for  the  same  purpose.79 

It  includes  not  only  criminal  prosecutions,  but  civil  suits 
against  federal  officers  to  hold  them  liable  for  their  acts  as 
such  in  connection  with  the  revenue  laws.  For  instance,  a 
suit  is  removable  from  the  state  court  which  sought  to  re- 
cover back  taxes  from  a  collector  of  internal  revenue  on 
the  ground  that  they  had  been  illegally  assessed  by  him.8<> 

It  includes  an  action  by  a  railroad  company  against  a 
collector  of  customs  for  freight  collected  by  his  deputy 
from  the  consignees  of  goods  passing  through  the  custom- 
house, and  in  -such  case  the  federal  court  has  jurisdiction 
to  decide  whether  the  collector  is  liable  for  the  acts  of  his 
deputy  under  such  circumstances.81 

Suits  in  connection  with  those  portions  of  the  postal  laws 
which  look  to  the  raising  of  revenue  are  removable.  This 
would  not  include  suits  in  connection  _with  the  money-order 


77  Commonwealth  of  Virginia  v.  Bingham  (C.  C.)  88  Fed.  561.    See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig.  §  50. 

78  Tennessee  v.  Davis,  100  U.  S.  257,  25  L.  Ed.  648.    Hence  a  suit 
against  a  federal  officer  acting  under  the  reclamation  act  of  June  17, 
1902  (32  Stat.  388),  is  not  removable,  as  it  is  not  a  revenue  law. 
Twin  Falls  Canal  Co.  v.  Foote  (C.  C.)  192  Fed.  583.    See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;   Cent.  Dig.  %  50. 

7e  Commonwealth  of  Virginia  v.  De  Hart  (C.  C.)  119  Fed.  626;  Da- 
vis v.  South  Carolina,  107  U.  S.  597,  2  Sup.  Ct.  636,  27  L.  Ed.  574. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig. 
§  50. 

so  Venable  v.  Richards,  105  U.  S.  636,  26  L.  Ed.  1196.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig.  §  50. 

si  Cleveland,  C.,  C.  &  I.  B.  Co.  v.  McClung,  119  U.  S.  454,  7  Sup. 
Ct.  262,  30  L.  Ed.  465.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)' 
§§  21,  22;  Cent.  Dig.  §  50. 


§    123)      ENFORCEMENT   OF   INTERNAL   REVENUE   LAWS  349 

system,  as  that  was  not  intended  by  Congress  to  be  a 
means  of  raising  revenue,  but  as  a  mere  convenience.82 

The  suits  in  connection  with  those  parts  of  the  postal 
laws  relating  to  the  raising  of  revenue  under  them  are  re- 
movable.83 

And  a  suit  in  a  state  court  against  contractors  charged 
with  the  duty  of  building  a  government  post  office,  and  in 
connection  with  other  acts  as  such  contractors,  is  remov- 
able.84 

The  statute,  however,  does  not  authorize  the  removal  of 
a  suit  against  a  United  States  commissioner  to  recover  fees 
illegally  exacted  by  him.85 

Nor  prosecutions  in  a  state  court  for  violation  of  the 
state  liquor  laws,  though  the  accused  may  hold  a  federal 
liquor  license.  A  license  of  this  sort  is  not  a  license  to  vio- 
late state  laws.86 

The  removal  under  this  act  is  effectual  when  the  federal 
court,  by  the  process  more  fully  set  out  in  the  statute,  noti- 
fies the  state  court  of  the  fact  of  removal.87 

The  effect  of  removing  such  a  case  is  rather  anomalous. 
The  federal  court  tries  the  action  as  a  prosecution  under 
the  laws  of  the  state,  and  follows  the  construction  of  the 

sa  U.  S.  v.  Norton,  91  IT.  S.  566,  23  L.  Ed.  454.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig.  §§  49-51. 

s  s  Warner  v.  Fowler,  Fed.  Cas.  No.  17,182;  U.  S.  v.  Bromley,  12 
How.  88,  13  L.  Ed.  905.  See,  as  illustrating  the  principle,  Bryant 
Bros.  Co.  v.  Robinson,  149  Fed.  321,  79  C.  C.  A.  259 ;  Lewis  Pub.  Co. 
v.  Wyman  (C.  C.)  152  Fed.  200;  People's  U.  S.  Bank  v.  Goodwin 
(C.  C.)  162  Fed.  937.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.) 
§§  21,  22;  Cent.  Dig.  §§  49-31. 

s*  Ward  v.  Congress  Construction  Co.,  99  Fed.  598,  39  C.  C.  A. 
669.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent. 
Dig.  §  50. 

sBBenchley  v.  Gilbert,  Fed.  Cas.  No.  1,291.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig.  §  50. 

8«  Com.  v.  Casey,  12  Allen  (Mass.)  214.  See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §§  21,  22;  Cent.  Dig.-  §  50. 

87  Virginia  v.  Paul,  148  U.  S.  107,  13  Sup.  Ct  536,  37  L.  Ed.  386. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  95;  Cent.  Dig.  §§ 
204,  205. 


350  DISTRICT  COURT — JURISDICTION   BY   REMOVAL     (Ch.  15 

state  law  by  the  state  court.  If  it  is  a  prosecution  in  a 
state  court  for  murder,  then  the  question  what  constitutes 
murder  or  homicide  is  to  be  settled  by  the  law  of  the  state 
against  whose  sovereignty  the  act,  if  an  offense  at  all,  is 
an  offense.88 

In  such  case  the  prosecution  in  the  federal  court  is  con- 
ducted by  the  state  prosecuting  officers,  and  the  federal 
prosecuting  officers,  if  they  take  part  at  all,  defend  the  ac- 
cused, as  he  is  setting  up  a  defense  under  the  federal  law.8* 

ss  State  of  North  Carolina  v.  Gosnell  (C.  C.)  74  Fed.  734.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  337,  359;  Cent.  Dig.  §§  908,  941. 

8»  State  of  Delaware  v.  Emerson  (C.  C.)  8  Fed.  411.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  127;  "Criminal 
Law,"  Cent.  Dig.  §  198. 


§    124)      DISTRICT  COURT — JURISDICTION   BY   REMOVAL  351 


CHAPTER  XVI 

THE   DISTRICT   COURT    (Concluded)— JURISDICTION   BY    RE- 
MOVAL (Concluded) 

124.  Steps  to  Secure  and  Effect  Removal — In  General. 

125.  Form  of  Petition  in  General. 

126.  Place  to  File  Petition. 

127.  Proper  Averments  in  the  Petition. 

128.  The  Removal  Bond. 

129.  Time  of  Filing  Petition. 

130.  Steps  at  Filing  of  Petition. 

131.  Filing  and  Subsequent  Procedure  in  Federal  Court. 

132.  Motion  to  Remand. 


STEPS  TO  SECURE  AND  EFFECT  REMOVAL— IN 

GENERAL 

124.  The  method  of  removing  a  cause  is  to  file  a  petition 
in  the  state  court  showing  on  its  face  a  removable 
case,  accompanied  by  a  proper  bond.  An  ordet 
should  then  be  obtained  from  the  state  court  ac- 
cepting the  bond.  A  transcript  of  the  record  must 
be  filed  afterwards  in  the  federal  court.  The  re- 
fusal of  the  state  court  to  enter  such  order  does 
not  defeat  the  right  of  removal. 

Section  29  of  the  Judicial  Code  provides  as  follows: 
"Whenever  any  party  entitled  to  remove  any  suit  men- 
tioned in  the  last  preceding  section,  except  suits  remov- 
able on  the  ground  of  prejudice  or  local  influence,  may  de- 
sire to  remove  such  suit  from  a  state  court  to  the  district 
court  of  the  United  States,  he  may  make  and  file  a  petition, 
duly  verified,  in  such  suit  in  such  state  court  at  the  time, 
or  any  time  before  the  defendant  is  required  by  the  laws 
of  the  state  or  the  rule  of  the  state  court  in  which  such 
suit  is  brought  to  answer  or  plead  to  the  declaration  or 


352  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  16 

complaint  of  the  plaintiff,  for  the  removal  of  such  suit  in- 
to the  district  court  to  be  held  in  the  district  where  such 
suit  is  pending,  and  shall  make  and  file  therewith  a  bond, 
with  good  and  sufficient  surety,  for  his  or  their  entering  in 
such  district  court,  within  thirty  days  from  the  date  of 
filing  said  petition,  a  certified  copy  of  the  record  in  such 
suit,  and  for  paying  all  costs  that  may  be  awarded  by  the 
said  district  court  if  said  district  court  shall  hold  that  such 
suit  was  wrongfully  or  improperly  removed  thereto,  and 
also  for  their  appearing  and  entering  special  bail  in  such 
suit  if  special  bail  was  originally  requisite  therein.  It  shall 
then  be  the  duty  of  the  state  court  to  accept  said  petition 
and  bond  and  proceed  no  further  in  such  suit.  Written 
notice  of  said  petition  and  bond  for  removal  shall  be  given 
the  adverse  party  or  parties  prior  to  filing  the  same.  The 
said  copy  being  entered  within  said  thirty  days  as  afore- 
said in  said  district  court  of  the  United  States,  the  parties 
so  removing  the  said  cause  shall,  within  thirty  days  there- 
after, plead,  answer,  or  demur  to  the  declaration  or  com- 
plaint in  said  cause,  and  the  cause  shall  then  proceed  in 
the  same  manner  as  if  it  had  been  originally  commenced 
in  the  said  district  court." 

Under  this  provision  the  only  method  of  removal  is  by 
petition,  and  the  necessity  for  filing  a  petition  is  jurisdic- 
tional.  The  case  cannot  be  removed  by  consent,  nor  can 
a  petition  be  waived  by  consent.1 

i  Hegler  v.  Faulkner,  127  U.  S.  482,  8  Sup.  Ct.  1203,  32  L.  Ed.  210; 
First  Nat.  Bank  v.  Prager,  91  Fed.  689,  34  C.  C.  A.  51.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §§  86,  89;  Cent.  Dig.  §§  132,  166-179. 


§   125)  FOBM   OF  PETITION  IN   GENEBAL  353 


FOR**  OF  PETITION  IN  GENERAL 

125.  The  petition  must  allege  all  necessary  jurisdictional 
facts,  and  such  facts  must  be  alleged  as  existing 
both  at  the  date  of  commencing  the  suit  in  the 
state  court  and  at  the  date  of  filing  the  petition. 
A  petition  which  does  not  make  this  allegation  is 
defective.2 

There  is  some  conflict  of  authority  on  the  question 
whether  the  petition  must  aver  the  necessary  facts 
positively,  or  whether  an  averment  on  informa- 
tion and  belief  is  sufficient. 

In  Wolff  v.  Archibald  3  it  was  decided  that  the  averment 
of  jurisdictional  facts  must  be  positive.  On  the  other 
hand,  in  Carlisle  v.  Sunset  Telephone  &  Telegraph  Co.,4 
it  was  held  that  as  the  petitioner  could  not,  in  the  nature 
of  things,  know  the  necessary  facts  positively  of  his  own 
knowledge,  an  averment  on  information  and  belief  was  suf- 
ficient. This  latter  view  seems  to  the  author  the  more 
reasonable  and  correct  one. 

Under  the  former  acts  the  petition  was  not  required  to 
be  under  oath,  with  some  exceptions.  But  the  present  act 
requires  it  to  be  "duly  verified."  This  will  hardly  be  con- 
strued to  mean  the  personal  oath  of  the  petitioner,  being 
apparently  intended  somewhat  as  a  pledge  of  good  faith 
which  counsel  or  local  agents  can  give.  In  view  of  the 
short  time  allowed,  it  would  often  be  difficult  to  secure  the 
personal  affidavit  of  a  nonresident  in  time. 

2  Mattlngly  v.  Northwestern  Virginia  R.  Co.,  158  U.  S.  53,  15  Sup. 
Ct  725,  39  L.  Ed.  894 ;  Dalton  v.  Milwaukee  Mechanics'  Ins.  Co.  (C. 
C.)  118  Fed.  936;  Stevens  v.  Nichols,  130  U.  S.  230,  9  Sup.  Ct  518, 
32  L.  Ed.  914.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86; 
Cent.  Dig.  §§  182,  166-179. 

s  (C.  C.)  14  Fed.  369.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
A'o.)  §  86;  Cent.  Dig.  §§  132,  166-179. 

*  (C.  C.)  116  Fed.  896.  See,  also,  Holton  v.  Helvetia-Swiss  Fire 
HUGHES  FED.PB.(2o  ED.) — 23 


354  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  16 

Signature  by  Counsel 

The  petition  need  not  be  signed  by  the  petitioner  him- 
self, but  may  be  signed  by  his  counsel.6 

How  far  Record  may  Supplement  Defective  Petition 

It  has  been  stated  above  that  the  petition  must  show  all 
the  necessary  jurisdictional  facts.  As  a  matter  of  good 
pleading,  this  should  always  be  done,  independent  of  the 
remainder  of  the  record,  as  the  court  should  be  entitled  to 
have  the  petitioner's  case  clearly  and  consecutively  pre- 
sented in  a  single  paper  without  being  put  to  the  trouble 
of  searching  through  the  record.  At  the  same  time  it  is 
the  result  of  the  decisions  that,  though  the  petition  itself 
may  be  defective  in  jurisdictional  facts,  yet  if  those  facts 
appear  from  other  parts  of  the  record  the  case  is  removable. 
In  Reed  v.  Hardeman  Co.6  the  petition  averred  that  the 
amount  involved  was  over  $500,  but  the  declaration 
showed  that  it  was  over  $25,000.  The  court  held  that  the 
case  was  removable  under  the  act  of  August  13,  1888, 
though  the  averment  of  the  petition  itself  did  not  show  the 
necessary  jurisdictional  amount. 

In  National  S.  S.  Co.  v.  Tugman  7  a  petition  was  defec- 
tive in  not  showing  the  alienage  of  one  of  the  parties ;  but 
other  parts  of  the  record  showed  it,  and  the  court  held  that 
the  case  was  removable. 


Ins.  Co.  of  St.  Gall,  Switzerland  (C.  C.)  163  Fed.  659.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig.  §§  132,  166-119. 

5  Dennis  v.  Alachua  Co.,  Fed.  Cas.  No.  3,791 ;  Removal  Cases,  100 
TJ.  S.  457,  25  L.  Ed.  593.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  86;  Cent.  Dig.  §§  166-179. 

e  77  Tex.  165,  13  S.  W.  1024.  See  "Removal  of  Causes,"  Dec.  Dig. 
'Key-No.)  §  86;  Cent.  Dig.  §§  132,  115. 

7  106  U.  S.  118,  1  Sup.  Ct  58,  27  L.  Ed.  87.  See,  also,  Denny  v. 
Pironi,  141  U.  S.  121,  11  Sup.  Ct.  966,  35  L.  Ed.  657;  Powers  v. 
Chesapeake  &  O.  R.  Co.,  169  U.  S.  92,  101,  18  Sup.  Ct.  264,  42  L.  Ed. 
673;  Kyle  v.  Chicago,  R.  I.  &  P.  R.  Co.  (C.  C.)  173  Fed.  238.  See 
"Removal  of  Causes"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig.  §§  166- 
119. 


§   125)  FORM   OF  PETITION  IN  GENERAL  355 

How  far  Petition  Amendable 

This  must  be  considered,  first,  as  to  the  power  of  the 
state  court  to  allow  an  amendment  before  the  order  of  re- 
moval is  entered,  and,  second,  as  to  the  power  of  the  fed- 
eral court  after  the  transcript  has  been  filed  in  the  latter 
court. 

As  to  the  state  courts,  an  amendment  can  certainly  be 
allowed  at  any  time  before  the  lapse  of  the  time  prescribed 
by  law  within  which  the  petition  must  be  filed.8 

It  has  also  been  held  that  the  state  court  can  allow  the 
amendment  of  a  petition  even  after  the  time  within  which 
the  petition  must  be  filed.9 

On  principle,  there  is  no  reason  why  a  state  court  can- 
not allow  an  amendment  at  any  time  before  it  has  entered 
the  order  of  removal.  If  the  case  is  a  removable  case,  and 
the  defect  is  merely  in  stating  such  facts,  the  party  ought 
not  to  be  deprived  of  his  statutory  right  to  remove  by  the 
omission  of  a  statement  of  fact  which  existed  at  the  time 
the  petition  was  filed,  although  not  set  out  in  the  petition. 

The  extent  of  the  right  to  amend  the  petition  for  remov- 
al after  it  is  filed  in  the  federal  court  is  not  clear.  Many 
cases  hold  that  an  entire  failure  to  aver  a  removable  case 
cannot  be  corrected  by  amendment,  because,  unless  the  pe- 
tition shows  a  jurisdictional  case,  the  state  court  has  never 
lost  its  jurisdiction,  and  it  is  unfair  to  that  court  to  try  to 
make  a  new  case  in  the  federal  court.  Hence  they  hold 
that  only  defects  in  matters  of  form  can  be  amended.10 

The  question  turns  largely  on  how  far  the  Supreme 
Court  meant  to  go  in  Kinney  v.  Columbia  Savings  &  Loan 

sHardwick  v.  Kean,  95  Ky.  563,  26  S.  W.  589;  Security  Co.  v. 
Pratt,  65  Conn.  161,  32  Atl.  396.  See  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §§  94,  107;  Cent.  Dig.  §  178. 

»  Roberts  v.  Pacific  &  A.  R.  &  Nav.  Co.  (C.  C.)  104  Fed.  577.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §  178. 

10  Shane  v.  Butte  Electric  R.  Co.  (C.  C.)  150  Fed.  801;  Wallen- 
burg  v.  Missouri  Pac.  R.  Co.  (C.  C.)  159  Fed.  217;  Santa  Clara 
County  v.  Goldy  Mach.  Co.  (C.  C.)  159  Fed.  750.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  {  178. 


356  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  16 

Ass'n.11  There  the  petition  contained  the  general  juris- 
dictional  allegation  as  to  citizenship  of  different  states, 
but  did  not  state  this  to  be  the  fact  at  the  commencement 
of  the  suit  as  well  as  at  the  filing  of  the  petition.  The 
lower  court  allowed  this  to  be  inserted  by  amendment,  and 
the  Supreme  Court  held  that  its  action  was  correct,  and 
that  such  an  amendment  was  allowable.  This  was  the 
only  point  directly  involved,  and  the  court  was  careful  to 
limit  its  decision  to  "the  power  of  the  circuit  court  to  per- 
mit amendments  of  pleadings  to  show  diverse  citizenship, 
and  of  removal  proceedings  where  there  is  a  technical  de- 
fect and  there  are  averments  sufficient  to  show  jurisdic- 
tion." But  the  opinion  also  quotes  approvingly  older  de- 
cisions which  allowed  an  allegation  of  residence  to  be 
changed  to  one  of  citizenship;  and  it  has  always  been 
held  that  an  allegation  of  residence  was  not  sufficient  to 
give  jurisdiction.  But,  notwithstanding  this,  it  is  the  pre- 
ponderant, and  better  opinion  that  a  petition  which  shows 
no  jurisdiction  at  all  and  is  not  helped  out  by  other  parts 
of  the  record  is  too  defective  to  amend. 


PLACE  TO  FILE  PETITION 

126.  Sections  29,  30  and  31  of  the  Judicial  Code  require  the 
petition  for  removal  to  be  filed  in  the  state  court 
in  the  following  cases: 

(a)  Suits  by  the  United  States  or  any  officer  thereof. 

(b)  Suits  between  citizens  of  the  same  state  claiming 

under  land  grants  from  different  states. 

11 191  U.  S.  78,  24  Sup.  Ct  30,  48  L.  Ed.  103.  See,  also,  as  exam- 
ples of  amendments,  Flynn  v.  Fidelity  &  Casualty  Co.  (C.  C.)  145  Fed. 
265 ;  Muller  v.  Chicago,  I.  &  L.  R.  Co.  (C.  C.)  149  Fed.  939 ;  Wilbur 
v.  Red  Jacket  Consol.  Coal  &  Coke  Co.  (C.  C.)  153  Fed.  662 ;  De  La 
Montanya  v.  De  La  Montanya  (D.  C.)  158  Fed.  117 ;  Kyle  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  173  Fed.  238.  See  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §§  94,  107;  Cent.  Dig.  §  178. 


§    127)  PROPER   AVERMENTS   IN   THE    PETITION  357 

(c)  Cases  turning  on  federal  questions. 

(d)  Cases  turning  on  the  citizenship  of  the  parties. 

(e)  Cases  turning  on  the  citizenship  of  the  parties  and 

removed  as  separable  controversies. 

(f)  Cases  turning  on  a  denial  of  equal  civil  rights. 
Under  sections  28  and  33  of  the  Judicial  Code,  the  peti- 
tion to  remove  must  be  filed  in  the  district  court 
of  the  United  States: 

(a)  When  the  ground  of  removal  is  prejudice  or  local 

influence. 

(b)  When  it  is  a  suit  or  prosecution  against  revenue  of- 

ficers, etc. 

PROPER  AVERMENTS  IN  THE  PETITION 

127.  A  petition  for  removal  under  any  one  of  the  various 
classes  of  removal  cases  must  show  in  its  aver- 
ments all  the  necessary  facts  to  entitle  the  peti- 
tioner to  a  removal  on  the  particular  ground  re- 
lied on. 

When  the  Ground  is  the  Existence  of  a  Federal  Question 

In  order  to  ascertain  the  proper  allegations  in  such  a  pe- 
tition, it  is  necessary  to  compare  the  twenty-fourth  section 
of  the  Judicial  Code  regulating  the  original  jurisdiction  of 
the  court,  with  the  twenty-eighth  section,  regulating  its 
jurisdiction  by  removal.  When  this  comparison  is  made, 
it  will  be  seen  that  the  petition  ought  to  show  the  charac- 
ter of  the  suit,  so  as  to  show  that  it  is  a  suit  of  a  civil  na- 
ture, at  law  or  in  equity,  of  which  the  court  would  have 
original  jurisdiction,  thus  excluding  proceedings  by  man- 
damus and  other  proceedings  which,  as  shown  in  a  pre- 
vious connection,  cannot  be  brought  originally  in  the  fed- 
eral courts.  The  petition  then  ought  to  show  that  the  suit 
arises  under  the  "Constitution  and  laws  of  the  United 
States,  or  treaties  made  or  which  shall  be  made  under  their 


358  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  16 

authority."  Prior  to  the  act  of  August  13,  1888,  it  was  es- 
sential to  show  this  by  the  petition,  at  least  in  those  cases 
where  it  did  not  appear  on  the  plaintiff's  pleading,  for  un- 
der the  prior  acts  a  suit  could  be  removed,  as  involving 
such  a  question,  where  the  question  was  raised  for  the  first 
time  by  the  defendant's  pleading;  but  it  has  been  seen  that 
under  the  present  act  the  plaintiff's  pleading  must  show 
the  existence  of  a  federal  question  upon  its  face  before  the 
case  is  removable  at  all.12  Hence,  while  it  is  better  plead- 
ing, and  due  the  court,  to  state  not  merely  in  general  terms 
that  the  case  arises  under  the  Constitution  and  laws  of  the 
United  States,  or  treaties  made  or  which  shall  be  made 
under  their  authority,  but  also  to  state  exactly  what  the 
question  is  and  how  it  arises;  still  a  failure  to  do  this 
would  not  be  fatal,  because  it  would  necessarily  appear  on 
the  plaintiff's  own  pleading,  and  hence  would  come  under 
the  principle  above  described,  that  the  petition  may  be 
supplemented  by  other  parts  of  the  record.13 

The  petition  should  conclude  with  the  prayer  for  rerqov- 
al,  and  have  the  bond  attached. 

Averments  Necessary  When  the  Application  is  to  Remove  the 

Entire  Controversy  on  the  Ground  of  Citizenship,  etc. 
In  this  class  of  cases  the  form  of  the  petition  is  neces- 
sarily more  important,  for  it  is  the  petition  which  shows 
that  the  case  is  a  removable  case,  and  not  the  other  parts 
•of  the  record.  In  an  ordinary  case  in  a  state  court  it  is 
no  part  of  any  system  of  pleading  to  set  out  the  citizenship 
of  the  parties.  Hence  the  record  in  this  case  must  be 

12  Minnesota  v.  Northern  Securities  Co.,  194  U.  S.  48,  24  Sup.  Ct 
598,  48  L.  Ed.  870.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.) 
§  86;  Cent.  Dig.  §§  132,  166-119. 

is  But  there  are  strong  decisions  to  the  effect  that  the  petition 
must  not  merely  aver  the  existence  of  a  federal  question  in  general 
terms,  but  must  state  facts  necessary  to  show  that  such  a  question 
is  involved  and  how  it  arose.  City  of  New  Castle  v.  Postal-Tele- 
graph Cable  Co.  (C.  C.)  152  Fed.  572 ;  Rural  Home  Tel.  Co.  v.  Pow- 
ers (C.  C.)  176  Fed.  986.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  86;  Cent.  Dig.  §§  132,  166-179. 


§    127)  PBOPEB   AVEBMENTS   IN   THE   PETITION  359 

supplemented  by  proper  averments  in  the  petition  itself, 
and  the  pleader  cannot  ordinarily  hope  to  fall  back  upon 
the  other  parts  of  the  record  to  help  him  out. 

The  twenty-fourth  section  of  the  Judicial  Code,  regulat- 
ing jurisdiction,  and  the  twenty-eighth  section,  regulating 
removals,  must  be  read  together  in  order  to  see  the  neces- 
sary averments.  Reading  them  together,  it  will  be  seen 
that  the  petition  ought  to  show  the  character  of  the  suit, 
whether  at  law  or  in  equity,  and  that  it  is  one  of  which  the 
district  court  would  have  original  jurisdiction.  It  ought 
to  show  the  amount  involved,  and  the  citizenship  of  each 
of  the  parties  at  the  time  of  the  commencement  of  the 
suit  and  at  the  time  of  filing  the  petition.  In  addition,  as 
only  the  nonresident  defendant  can  remove,  it  ought  to 
show  the  residence  or  habitation  of  each  party,  both  plain- 
tiff and  defendant;  and,  if  it  is  a  suit  by  the  assignee,  it 
ought  to  show  the  same  as  to  the  assignor.  But  where 
these  facts  appear  in  other  parts  of  the  record,  in  such  case 
an  omission  to  allege  these  facts  would  be  supplemented 
by  the  record.  But  still  the  petition  ought  to  collate  all 
these  facts  for  the  convenience  of  the  court.14 

It  is  not  sufficient  to  allege  merely  that  the  plaintiffs 
and  defendants  are  citizens  of  different  states,  but  the 
citizenship  of  each  one  must  be  given.18 

Same — Corporations 

These  are  the  general  rules  as  to  the  drafting  of  the  pe- 
tition. There  are,  however,  many  instances  where  general 
allegations  are  tantamount  to  the  allegations  stated  to  be 
necessary  above.  Most  of  these  questions  arise  in  con- 
nection with  the  proper  averments  as  to  the  legal  status 
of  corporations.  The  general  principles  discussed  in  ref- 

i*  Hall  v.  Tevls  (C.  C.)  177  Fed.  600;  Katalla  Co.  v.  Rones,  186 
Fed.  30,  108  C.  C.  A.  132.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  86;  Cent.  Dig.  §§  132,  166-179. 

IB  Cameron  v.  Hodges,  127  U.  S.  322,  8  Sup.  Ct  1154,  32  L.  Ed. 
132.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig. 
§§  166-119. 


360  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  16 

erence  to  the  proper  allegations  in  original  suits  18  apply 
to  such  circumstances. 

In  the  case  of  an  alien  corporation,  for  instance,  an  al- 
legation that  the  corporation  is  organized  under  the  laws 
of  a  certain  foreign  country  is,  in  law,  equivalent  to  the 
allegation  that  this  was  the  state  of  facts  both  at  the  com- 
mencement of  the  suit  and  the  filing  of  the  petition  for 
removal,  for  it  speaks  of  the  date  of  creation.17 

The  principle  that  a  corporation  must  not  be  alleged  to 
be  a  citizen,  and  that  such  an  allegation  is  meaningless,  ap- 
plies as  well  to  removal  cases  as  to  original  cases.18 

An  allegation  that  the  corporation  is  organized  under  the 
laws  of  a  certain  state,  and  has  its  principal  office  at  a  cer- 
tain place  in  said  state,  is  a  sufficient  allegation  both  of 
citizenship  and  residence,19  though,  for  safety's  sake,  an 
allegation  that  such  was  the  state  of  facts  both  at  the  com- 
mencement of  the  suit  and  the  filing  of  the  petition  would 
be  a  wise  addition. 

In  some  cases  it  has  been  held  that,  in  making  the  prop- 
er allegations  as  to  a  corporation,  it  should  be  stated  not 
only  that  it  is  a  citizen  of  a  given  state,  with  its  principal 
office  in  that  state,  but  also  that  it  is  not  a  citizen  of  the 
state  where  the  suit  is  pending.  The  reason  given  for  this 
decision  is  that  a  corporation  may  be  a  citizen  of  more 
than  one  state,  and  that  this  possibility  ought  to  be  ex- 
cluded.20 

On  the  other  hand,  it  has  been  held  that  an  allegation 

ie  Ante,  p.  248   et  seq. 

IT  Continental  Wall-Paper  Co.  v.  Lewis  Voight  &  Sons  Co.  (C.  C.) 
106  Fed.  550.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86; 
Cent.  Dig.  §§  166-119. 

is  Dinet  v.  Delavan  (C.  C.)  117  Fed.  978.  See  "Removal  of  Causes," 
Deo.  Dig.  (Key-No.)  §  86;  Cent.  Dig.  §§  166-179. 

i»  Ante,  p.  250. 

20  Overman  Wheel  Co.  v.  Pope  Mfg.  Co.  (C.  C.)  46  Fed.  577.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig.  §§  166- 
179. 


§    127)  PROPER  AVERMENTS  IN  THE   PETITION  361 

that  it  is  a  corporation  of  a  certain  state,  with  its  principal 
office  in  that  state,  is  sufficient.21 

It  seems  to  the  author  that  this  latter  class  of  authori- 
ties is  best  based  on  reason.  A  study  of  the  Supreme 
Court  decisions  in  relation  to  corporations  holding  charters 
or  permissive  legislation  from  more  than  one  state  will 
show  that  a  corporation  cannot  be  a  citizen  of  two  states. 
On  the  contrary,  those  cases  have  held  that  where  a  cor- 
poration is  chartered  simultaneously  by  two  states,  and 
keeps  but  one  set  of  books,  one  set  of  officers,  and  one 
organization,  still,  in  contemplation  of  law,  they  are  two 
entirely  distinct  and  separate  corporations.  Hence  an 
averment  that  a  corporation  was  organized  under  the  laws 
of  a  certain  state,  with  its  principal  office  in  that  state, 
would  be  tantamount  to  the  averment  that  it  was  the  cor- 
poration which  was  bringing  the  suit,  and  this  ought  to  be 
sufficient.22  If  this  were  not  true,  certainly  an  allegation 
to  the  above  effect  ought  to  be  sufficient  to  make  a  prima 
facie  case,  and  to  put  on  any  party  who  should  question  it 
the  onus  of  denying  it. 

Averment  of  Residence 

As  to  a  corporation,  an  averment  that  it  is  organized  un- 
der the  laws  of  a  certain  state,  with  its  principal  office  in 
that  state,  is  equivalent  to  an  averment  of  residence  in  that 
state.28 


21  Myers  v.  Murray,  Nelson  &  Co.  (C.  C.)  43  Fed.  695,  11  L.  R.  A. 
216;  Shattuck  v.  North  British  &  Mercantile  Ins.  Co.,  58  Fed.  609, 
7  C.  C.  A.  386;  Wilcox  &  Gibbs  Guano  Co.  v.  Phoenix  Ins.  Co.  (C. 
C.)  60  Fed.  929.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86; 
Cent.  Dig.  §§  166-179. 

«  Nashua  &  L.  R.  Corp.  v.  Boston  &  L.  R.  Corp.,  136  U.  S.  356,  10 
Sup.  Ct.  1004,  34  L.  Ed.  363.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
314;  Cent.  Dig.  §  860;  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  § 
86;  Cent.  Dig.  §§  166-179. 

2  s  HO  ward  v.  Gold  Reefs  of  Georgia  (C.  C.)  102  Fed.  657;  Baum 
garten  v.  Alliance  Assur.  Co.,  Limited,  of  London  (C.  C.)  153  Fed. 
301.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig. 
§§  166-179. 


362  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  16 

In  reference  to  such  an  averment  as  among  individuals, 
it  was  held  in  Fife  v.  Whittell 24  that,  as  only  a  nonresident 
defendant  could  remove,  there  must  be  an  express  aver- 
ment in  the  petition  that  the  defendant  is  a  nonresident, 
though  there  is  already  an  express  averment  that  the  de- 
fendant is  a  citizen  and  resident  of  a  certain  state,  different 
from  the  one  where  the  suit  was  instituted. 

On  the  other  hand,  in  Zebert  v.  Hunt 25  it  was  held  that 
an  allegation  of  citizenship  and  residence  in  another  state 
was  sufficient  to  show  nonresidence.  To  the  author  it 
seems  that  it  certainly  ought  to  be  sufficient.  If  a  suit  is 
brought  in  the  Eastern  District  of  Virginia,  and  the  peti- 
tion alleges  that  the  defendant  is  a  citizen  and  resident  of 
the  state  of  New  York,  it  would  seem  hypercritical  in  the 
extreme  to  require  him  to  go  on  and  allege  further  that 
he  was  not  a  resident  of  the  state  of  Virginia.  Something 
might  be  left  for  the  court  to  presume. 

Allegations  Necessary  in  Removals  on  the  Ground  of  Sepa- 
rable Controversies 

As  the  plaintiff's  own  petition  must  show  that  the  plain- 
tiff's controversy  is  separable,  this  allegation  is  not  essen- 
tial, but  should  be  inserted  for  the  reasons  given  in  pre- 
vious connections.  Hence  the  petition  in  such  case  ought 
to  show  the  character  of  suit,  the  amount,  the  citizenship 
of  the  parties  to  the  controversy,  alleged  in  accordance 
with  the  rules  given  in  the  last  connection,  and  sufficient 
to  show  that  the  defendant  is  a  nonresident  defendant.  Of 
course,  as  in  all  other  cases,  there  should  be  a  prayer  for 
removal  and  a  proper  bond. 

24  (C.  C.)  102  Fed.  537.    But  such  an  averment  would  be  necessary 
as  to  an  alien  defendant,   since  an  alien  may  still  be  a   resident. 
Mayer  v.    Karaghuesian   (C.   C.)    169   Fed.    736.     See   "Removal   of 
Causes,"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig.  §§  166-179. 

25  (C.  C.)  108  Fed.  449.    See,  also,  Lawrence  v.  Southern  Pac.  Co. 
(C.  C.)  165  Fed.  241 ;    Harding  v.  Standard  Oil  Co.  (C.  C.)  182  Fed. 
421.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  86;  Cent.  Dig. 
§§  166-119. 


§    127)  PBOPEB   AVERMENTS   IN   THE   PETITION  363 

Allegations  When  the  Ground  is  Prejudice  or  Local  Influence 
This  petition,  as  shown  above,  goes  to  the  United  States 
district  court.  As  there  is  no  record  in  that  court  to  help 
out  the  petition,  it  must  be  prepared  with  special  care. 
It  must  show  the  character  of  the  suit,  the  amount  in- 
volved, the  citizenship  and  residence  of  both  parties  as 
detailed  above,  and  the  facts  which  are  claimed  to  show  the 
existence  of  prejudice  or  local  influence.  A  mere  allega- 
tion that  such  prejudice  or  local  influence  exists  would  not 
be  sufficient,  but  the  petition  should  set  out  wherein  the 
prejudice  or  local  influence  is  supposed  to  exist.  It  is  a 
delicate  matter  for  a  judge  to  remove  a  suit  from  another 
court  on  such  a  ground,  and  the  petitioner  must  expect 
that  the  first  impulse  of  the  federal  judge  in  such  case  will 
be  a  negative,  and  must  make  his  strongest  allegations  to 
meet  it.  It  should  be  accompanied  by  affidavits  or  other 
proof  sufficient  to  make  such  a  case  appear  to  the  court.20 

Removal  on  Ground  of  Denial  of  Civil  Rights 

In  this  case  the  amount  and  citizenship  are  immaterial. 
The  petition  under  such  circumstances  should  show  the 
character  of  the  suit  or  prosecution,  show  the  right  denied, 
and  state  the  facts  constituting  the  denial,  and  an  affidavit 
is  necessary. 

Removal  on  Ground  of  Prosecution  of  Revenue  Officers 

The  petition  in  this  case  moist  be  filed  in  the  federal 
court,  and,  as  there  is  no  record  in  this  court  at  the  time  of 
its  filing,  it  must  necessarily  be  full.  It  must  show  the 
nature  of  the  suit  or  prosecution,  and  have  a  certificate  of 
an  attorney  or  counselor  who  appears  in  the  court  when 
the  suit  or  prosecution  is  commenced,  or  in  the  United 
States  court,  stating  that,  as  counsel  for  the  petitioner,  he 
has  examined  the  proceedings,  and  carefully  inquired  into 


2«  City  of  Detroit  v.  Detroit  City  R.  Co.  (C.  C.)  54  Fed.  1.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  87;  Cent.  Dig.  §§  180- 
183. 


364  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  16 

all  the  matters  set  forth  in  the  petition,  and  believes  them 
to  be  true.     The  petition  must  be  verified  by  affidavit. 


THE  REMOVAL  BOND 

128.  In  order  to  effect  a  removal,  the  petitioner  is  required 
to  file  a  bond,  with  proper  surety,  to  insure  the 
transfer  on  his  part  of  the  record  in  the  case  to 
the  proper  federal  court  at  the  proper  time,  and  to 
cover  all  costs  incident  to  the  removal  of  the  case. 

Section  29  of  the  Judicial  Code  requires,  in  reference  to 
the  main  sources  of  jurisdiction  by  removal,  that  with  the 
petition  the  petitioner  shall  file  a  bond,  "with  good  and 
sufficient  surety,  for  his  or  their  entering  in  such  district 
court  within  thirty  days  from  the  date  of  filing  said  peti- 
tion a  copy  of  the  record  in  such  suit,  and  for  paying  all 
costs  that  may  be  awarded  by  the  said  district  court  if  said 
district  court  shall  hold  that  such  suit  was  wrongfully  or 
improperly  removed  thereto,  and  also  for  their  appearing 
and  entering  special  bail  in  such  suit  if  special  bail  was 
originally  requisite  therein." 

This  bond  is  not  an  ordinary  court  bond,  and  the  word 
"bond"  is  not  used  in  the  sense  of  a  writing  obligatory,  and 
it  need  not  be  executed  by  the  party  asking  the  removal 
nor  be  accompanied  by  a  power  of  attorney  when  signed 
by  an  agent.27 

In  the  Removal  Cases  28  the  Supreme  Court  approved  a 
bond  not  under  seal  and  signed  with  the  plaintiff's  name  by 

27  Removal  Cases,  100  U.  S.  457,  25  L.  Ed.  593;  Loop  v.  Winter's 
Estate  (C.  C.)  115  Fed.  362 ;  People's  Bank  of  Greenville  v.  -SEtna  Ins. 
(C.  C.)  53  Fed.  161;  Mutual  Life  Ins.  Co.  of  New  York  v.  Langley 
(C.  C.)  145  Fed.  415;  Fayette  Title  &  Trust  Co.  v.  Maryland  P.  & 
W.  V.  Telephone  &  Telegraph  Co.  (C.  C.)  180  Fed.  928.  See  "Remov- 
al of  Causes,"  Dec.  Dig.  (Key-No.)  §  88;  Cent.  Dig.  §§  184-188. 

28100  U.  S.  457,  25  L.  Ed.  593.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  88;  Cent.  Dig.  §§  184-188. 


§    129)  TIME   OF  FILING   PETITION  365 

his  attorneys.  A  defect  in  a  bond  is  not  jurisdictional, 
but  the  court  may  allow  it  to  be  amended,  or  a  new  one  to 
be  substituted.29 

The  statute  does  not  name  any  fixed  amount  as  a  pen- 
alty. There  is  some  difference  of  opinion  among  the 
courts  whether  a  bond  should  name  a  penalty  or  not.  It 
would  seem  to  be  the  correct  practice  to  name  a  penalty, 
but  the  penalty  named  should  be  sufficiently  large  to  cover 
all  possible  costs  in  the  event  of  a  remand ;  and,  if  it  is,  the 
better  opinion  is  that  the  bond  would  be  in  proper  form.30 

TIME  OF  FILING  PETITION 

129.  The  petition  for  removal  must  be  filed  at  or  before 
the  time  when  the  defendant  is  required  by  the 
laws  of  the  state,  or  the  rule  of  the  state  court  in 
which  the  suit  is  brought,  to  first  answer  or  plead 
to  the  declaration  or  complaint  of  the  plaintiff. 
But  the  question  of  the  time  of  filing  the  petition 
is  not  one  of  jurisdiction,  but  merely  modal  or 
formal,  and  may  be  waived. 

In  the  cases  covered  by  the  twenty-eighth  section  of  the 
Judicial  Code,  except  removals  on  the  ground  of  prejudice 
or  local  influence,  the  statute  requires  that  the  defendant 
may  make  and  file  a  petition  in  such  suit  in  such  state  court 
at  the  time  or  any  time  before  the  defendant  is  required  by 
the  laws  of  the  state,  or  the  rule  of  the  state  court  in  which 
such  suit  is  brought,  to  answer  or  plead  to  the  declaration 
or  complaint  of  the  plaintiff.  This  is  quite  a  departure 

/ 

2»  Overman  Wheel  Co.,/*.  Pope  Mfg.  Co.  (C.  C.)  46  Fed.  577;  Ayres 
v.  Watson,  113  U.  S.  594,  5  Sup.  Ct.  641,  28  L.  Ed.  1093 ;  Chase  v. 
Erhardt  (D.  C.)  198  Fed/305.  See  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §  88;  Cent.  Dig.  §§  184-188. 

so  Commonwealth  v.  Louisville  Bridge  Co.  (C.  C.)  42  Fed.  241; 
Johnson  v.  F.  C.  Austin  Mfg.  Co.  (C.  C.)  76  Fed.  616;  Groton  Bridge 
Co.  v.  American  Bridge  Co.  (C.  C.)  137  Fed.  284.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  88;  Cent.  Dig.  §§  184-188. 


366  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  16 

from  the  policy  of  the  earlier  acts,  which  allowed  a  longer 
time  within  which  to  file  the  petition.  At  the  same  time, 
the  question  of  the  time  of  filing  the  petition  is  not  one  of 
jurisdiction,  but  is,  as  has  been  said  more  than  once,  mere- 
ly modal  and  formal.  Hence  it  is  a  requirement  which 
may  be  waived  either  by  direct  consent  or  by  conduct. 
The  plaintiff  who  wishes  to  contend  that  the  petition  has 
not  been  filed  in  time  must  act  promptly.  If  he  goes  to 
trial  on  the  merits,  or  contests  the  right  of  removal  on  oth- 
er grounds,  he  waives  this  right.31 

Nor  can  this  question  be  raised  for  the  first  time  in  an 
appellate  court.32 

The  question  when  the  petition  should  be  filed  depends 
upon  the  statutes  and  practice  of  the  different  states.  But 
the  petition  must  be  filed  when  the  defendant  is  required  to 
put  in  any  defense  to  the  complaint,  whether  of  a  dilatory 
character  or  to  the  merits.  If,  under  the  practice  of  the 
state  court,  dilatory  pleas  must  be  filed  at  an  earlier  date 
than  pleas  to  the  merits,  then  the  defendant  must  file  his 
petition  at  the  time  when  the  dilatory  plea  is  due.38 

Rule  in  Case  of  Extension  of  Time 

The  question  whether  an  extension  of  time  within  which 
the  defendant  shall  answer  extends  the  time  for  filing  the 
petition  is  one  in  which  the  decisions  are  in  great  conflict. 
In  the  New  York  circuit  it  is  held  that  such  an  extension 
does  extend  the  time  for  filing  the  petition.34 

si  Guarantee  Co.  of  North  Dakota  v.  Han  way,  104  Fed.  369,  44 
C.  C.  A.  312;  Martin  v.  Baltimore  &  O.  Ry.  Co.,  151  U.  S.  673,  14 
Sup.  Ct  533,  38  L.  Ed.  311;  Kansas  City,  Ft.  S.  &  M.  R.  Co  v. 
Daughtry,  138  U.  S.  298,  11  Sup.  Ct.  306,  34  L.  Ed.  963.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  81;  Cent.  Dig.  §§  137,  138. 

32  Knight  v.  International  &  G.  N.  R.  Co.,  61  Fed.  87,  9  C.  C.  A. 
376;  Newman  v.  Schwerin,  61  Fed.  865,  10  C.  C.  A.  129.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  81;  Cent.  Dig.  §  137. 

ss  MARTIN  v.  RAILWAY  CO.,  151  U.  S.  673,  14  Sup.  Ct.  533,  38 
L.  Ed.  311;  A.  Overholt  &  Co.  v.  German- American  Ins.  Co.  (C.  C.) 
155  Fed.  488.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  79; 
Cent.  Dig.  §§  135-160. 

3*  Lord  v.  Lehigh  Val.  R.  Co.  (C.  C.)  104  Fed.  929;  Dancel  v.  Good- 


§    129)  TIME   OF  FILING   PETITION  367 

There  is,  however,  highly  respectable  authority  the  oth- 
er way.85 

The  decisions  in  the  different  districts  on  this  point  are 
necessarily  largely  influenced  by  the  practice  of  the  states 
in  which  the  decisions  are  rendered.  The  case  of  Martin 
v.  Baltimore  &  O.  Ry.  Co.,  above  cited,  seems  to  establish 
that  the  petition  must  be  filed  before  any  judgment  of  de- 
fault, even  conditional  in  its  nature,  is  entered  against  the 
defendant.  Hence,  on  principle,  the  proper  doctrine  ap- 
pears to  be  that  if,  at  the  time  the  extension  is  granted, 
no  judgment  by  default  has  been  entered  against  the  de- 
fendant, and  if  the  effect  of  the  extension  is  that  no  judg- 
ment by  default  can  be  entered  until  the  period  of  exten- 
sion expires,  then  the  defendant  can  file  his  petition  dur- 
ing such  extension.  But  if  a  judgment  by  default  has  to 
be  set  aside  in  order  to  grant  the  extension,  it  would  be  too 
late. 

In  Chiatovich  v.  Hanchett 8<J  the  court  held  that  an  ex- 
tension by  stipulation  of  parties,  without  any  court  order, 
extended  the  time  for  filing  the  petition.  This  apparently 
is  going  too  far,  as  the  question  is  determined,  under  the 
language  of  the  statute,  not  by  special  interchanges  of 
courtesies  among  counsel,  or  by  orders  in  special  cases,  but 
by  the  generar  laws  or  rules  of  the  state  court.  No  bet- 
ter test  can  be  laid  down  as  to  the  general  provision  than 
the  language  of  the  statute  itself.  If,  under  the  state 
practice,  the  defendant  is  required,  first,  whether  there  is 

year  Shoe  Mach.  Co.  (C.  C.)  106  Fed.  551.  See,  also,  Avent  v.  Deep 
River  Lumber  Co.  (C.  C.)  174  Fed.  298 ;  Hlgson  v.  North  River  Ins. 
Co.  (C.  C.)  184  Fed.  165.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
yo.)  §  79;  Cent.  Dig.  §  144- 

ss  Fox  v.  Southern  R.  Co.  (C.  C.)  80  Fed.  945.  See,  also,  Heller  v. 
Ilwaco  Mill  &  Lumber  Co.  (C.  C.)  178  Fed.  Ill;  Wayt  v.  Standard 
Nitrogen  Co.  (C.  C.)  189  Fed.  231.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  $  79;  Cent.  Dig.  §  144. 

so  (C.  C.)  78  Fed.  193.  See,  also,  Tevis  v.  Palatine  Ins.  Co.  of  Lon- 
don, England  (C.  C.)  149  Fed.  560.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-yo.)  §  79;  Cent.  Dig.  §  144- 


368  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  16 

any  extension  or  not,  to  plead  to  the  declaration  or  com- 
plaint, whether  that  plea  be  dilatory  or  peremptory,  then 
he  must  file  his  petition  when  such  plea  is  due.  If  the  ef- 
fect of  the  extension  under  the  state  practice  is  under  the 
general  rules  of  practice  of  that  state,  and  not  under  spe- 
cial agreement  of  counsel,  to  extend  the  time  within  which 
he  is  first  required  to  plead  any  sort  of  plea  on  pain  of  a 
default  judgment,  whether  conditional  or  absolute,  then 
the  effect  of  the  extension  would  be  to  extend  the  right  of 
filing  the  petition.  This  seems  to  the  author  the  mean- 
ing of  the  statute. 

It  has  well  been  held  that  a  party  who  is  not  served  with 
process,  and  only  appeared  on  condition  that  he  should 
answer  within  a  certain  length  of  time,  could  file  his  peti- 
tion during  that  time,  though  it  extended  the  period  be- 
yond the  time  when  he  would  have  had  to  make  defense, 
had  he  been  served.37 

If  the  service  is  void,  the  time  does  not  run  from  such 
service,  and  the  petition  may  be  filed  even  after  a  judgment 
by  default,  for  the  judgment  by  default  is  void  itself  if  the 
service  is  void.38 

In  proceedings  against  a  nonresident  on  attachment  and 
by  publication,  many  state  codes  provide  that  the  defend- 
ant may  appear  within  a  given  time,  if  he  has  not  been 
served  with  process,  set  aside  the  judgment,  and  defend 
the  case. 

Under  the  act  of  1875,  which  required  the  petition  to  be 
filed  before  the  first  term  at  which  the  case  could  be  tried, 
the  Supreme  Court  held  that  a  nonresident  defendant  who 
appeared  after  the  term  and  set  aside  the  default  could 
file  his  petition.89 


37  Tracy  v.  Morel  (C.  C.)  88  Fed.  801.  See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §  144. 

ss  Tortat  v.  Hardin  Min.  &  Mfg.  Co.  (C.  C.)  Ill  Fed.  426.  See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §§  141-146. 

39  Barter  Tp.  v.  Kernochan,  103  U.  S.  562,  26  L.  Ed.  411.     See 


§    129)  TIME   OF  FILING   PETITION  369 

The  principle  of  this  decision  applies  to  the  present  act. 
A  proceeding  by  attachment,  not  accompanied  with  per- 
sonal service,  is  void,  except  as  regards  the  property  at- 
tached; being  in  the  nature  of  an  action  in  rem.  This  be- 
ing the  case,  the  defendant  is  not  in  court  personally  on 
such  proceeding,  and  when  he  comes  into  court  he  comes 
with  all  of  the  rights  which  he  would  have  had  in  an  or- 
dinary personal  suit. 

Removals  on  Amended  Declaration  or  Complaint 

It  frequently  happens  that  the  original  complaint  of  the 
plaintiff  does  not  show  a  removable  case,  as  when  it  makes 
parties  who  would  defeat  the  jurisdiction.  Subsequent 
thereto  the  plaintiff,  by  dismissing  his  suit  as  to  some  of 
the  defendants,  or  by  filing  an  amended  petition  showing  on 
its  face  some  ground  of  removal,  changes  the  character  of 
the  case.  There  was  for  a  time  considerable  conflict 
among  the  authorities  whether  a  change  of  this  sort  would 
give  the  right  to  remove  a  case  on  an  amended  petition, 
when  it  did  not  first  exist.  It  had  been  held  that,  where 
the  amendment  raised  the  amount  involved  to  the  juris- 
dictional  amount,  then  a  petition  to  remove  could  be  filed 
within  the  time  when  the  petitioner  was  first  required  to 
answer  the  amended  petition.40 

A  recent  decision  of  the  Supreme  Court,  however,  has 
put  the  matter  at  rest,  and  held  that,  where  the  amended 
petition  made  a  removable  case  which  did  not  exist  before, 
the  right  of  removal  could  be  exercised  within  the  time  re- 
quired to  plead  to  the  amended  petition.*1 

"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  79;   Cent.  Dig.  §§  141- 
146. 

40  Husklns  v.  Railroad  Co.  (C.  C.)  37  Fed.  504,  3  L.  R.  A.  545.    See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  79;    Cent.  Dig.  §§  141- 
146. 

41  Powers  v.  Chesapeake  &  O.  R.  Co.,  169  U.  S.  92,  18  Sup.  Ct.  264, 
42  L.  Ed.  673 ;   Jones  v.  Mosher,  107  Fed.  561,  46  C.  C.  A.  471 ;  Fritz- 
len  v.  Boatmen's  Bank,  212  U.  S.  364,  29  Sup.  Ct.  366,  53  L.  Ed.  551. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  79;    Cent.  Dig.  §§ 
141-146. 

HUGHES  FED.PB.(2o  ED.) — 24 


370  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  16 

This  principle,  however,  only  applies  where  the  petition 
itself  or  the  voluntary  act  of  the  plaintiff  shows  a  remov- 
able case.  A  decision  by  the  court  dismissing  the  case  as 
to  one  of  the  two  defendants  on  the  merits  does  not  result 
in  allowing  the  other  defendant  to  remove.42 

Removals  in  Vacation  of  State  Court 

Interesting  and  conflicting  questions  of  practice  arise 
when  the  petition  is  filed  during  the  vacation  of  the  state 
court.  For  instance,  under  the  Virginia  practice  the  time 
when  the  defendant  is  first  required  to  plead  is  at  a  rule 
day,  and  while  the  case  is  "at  rules,"  as  it  is  usually  desig- 
nated. The  rules  are  kept  by  the  clerk,  and  the  judge  has 
no  control  over  proceedings  at  rules  until  the  case  goes  on 
the  trial  docket.  Under  this  practice,  the  petition  must  be 
filed  at  rules — that  is,  in  the  clerk's  office,  before  the  clerk 
— and  the  judges  ordinarily  refuse  to  enter  any  order,  be- 
cause they  contend  that,  under  the  state  practice,  they  have 
no  power  while  the  case  is  at  rules.  At  the  same  time,  a 
case  cannot  well  be  removed  until  the  court,  as  a  court, 
has  an  opportunity  to  pass  upon  the  question  whether  the 
petition  makes  a  removable  case,  and  whether  the  bond  is 
sufficient.  Under  these  circumstances,  the  proper  practice 
is  to  file  the  petition  at  rules,  and  at  the  next  term  of  the 
court  to  bring  it  to  the  attention  of  the  court,  and  ask  the 
removal  order  to  be  entered.48 

If,  however,  the  state  judge  has  power  to  act  at  rules  or 
in  vacation,  this  removes  the  case,  without  any  further  or- 
der in  court.44 

42  Whitcomb  v.  Smithson,  175  U.  S.  635,  20  Sup.  Ct.  248,  44  L.  Ed. 
303,  and  the  comments  thereon  in  Alabama  Great  Southern  R.  Co. 
v.  Thompson,  200  U.  S.  206,  26  Sup.  Ct.  161,  50  L.  Ed.  441,  4  Ann. 
Gas.  1147.    See  "Removal  of  Causes"  Dec.  Dig.  (Key-No.)  §  19;  Cent. 
Dig.  §§  U1-U6. 

43  Monroe  v.  Williamson  (C.  C.)  81  Fed.  977;    Hall  v.  Chattanooga 
Agricultural  Works  (C.  C.)  48  Fed.  599;   Fox  v.  Southern  R.  Co.  (C. 
C.)  80  Fed.  945;    Mays  v.  Newlin  (C.  C.)  143  Fed.  574.     See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  95;  Cent.  Dig.  §§  204,  205. 

44  Mecke  v.  Valley  Town  Mineral  Co.,  93  Fed.  697,  35  C.  C.  A.  151. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  79. 


§   130)  STEPS   AT  FILING   OF  PETITION  371 

Time  of  Filin-g  Petition  in  Removals  on  Ground  of  Prejudice 
or  Local  Influence  or  for  Denial  of  Civil  Rights,  or  Suits 
against  Revenue  Officials 

In  removals  on  the  ground  of  prejudice  or  local  influ- 
ence, the  statute  requires  that  the  petition,  which  in  this 
case  is  filed  in  the  United  States  district  court,  shall  be 
filed  "at  any  time  before  the  trial  thereof."  This  means 
the  first  trial,  and  consequently  the  application  would  be 
too  late  after  a  mistrial.46 

In  removals  on  the  ground  of  denial  of  civil  rights,  the 
petition  must  be  filed  in  the  state  court  "at  any  time  before 
the  trial  or  final  hearing  of  the  cause,"  and  in  suits  against 
revenue  officers  it  must  be  filed  "at  any  time  before  the  trial 
or  final  hearing  thereof."  In  these  cases,  under  the  mean- 
ing given  these  words  in  previous  acts,  the  petition  could 
be  filed  even  after  a  mistrial,  because  that  would  still  be 
before  the  trial  or  final  hearing.48 

In  these  two  latter  cases  it  must  be  filed  before  the  trial 
is  commenced.  In  Yulee  v.  Vose  47  it  was  held  that  the 
trial  had  not  commenced,  though  the  jury  was  sworn,  and 
that  a  petition  filed  after  the  jury  was  sworn  was  in  time. 


STEPS  AT  FILING  OF  PETITION 

130.  When  the  petition  is  to  be  filed  in  the  state  court,  the 
procedure  is  to  take  the  petition  and  bond  and 
present  it  to  the  judge,  if  it  is  a  case  where  it  must 
be  filed  in  open  court,  or  file  it  in  the  clerk's  office, 
where  that  is  the  proper  place.  If  presented  to 

<6  Fisk  v.  Henarle,  142  U.  S.  459,  12  Sup.  Ct.  207,  35  L.  Ed.  1080; 
McDonnell  v.  Jordan,  178  U.  S.  229,  20  Sup.  Ct.  886,  44  L.  Ed.  1048. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  80;  Cent.  Dig.  §  160. 

"Home  Life  Ins.  Co.  v.  Dunn,  19  Wall.  214,  22  L.  Ed.  68;  Bal- 
timore &  O.  R.  Co.  v.  Bates,  119  U.  S.  464,  7  Sup.  Ct.  285,  30  L.  Ed. 
436.  See  "Removal  of  Causes"  Dec.  Dig.  (Key-No.)  §  79. 

4799  U.  S.  539,  25  L.  Ed.  355.  See  "Removal  of  Causes,"  Dec. 
Dig.  (Key-No.)  §  79;  Cent.  Dig.  §§  1S9-160. 


372  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  16 

the  judge,  he  ought  to  be  requested  to  sign  an  or- 
der of  removal.  If  filed  in  the  clerk's  office,  the 
judge  ought  to  be  requested  at  the  next  term  to 
sign  such  an  order. 

Where  the  removal  is  on  the  ground  of  prejudice  or  local 
influence,  the  petition,  as  has  been  seen,  is  filed  in 
the  federal  court,  and  it  must  be  made  to  appear 
to  that  court  that  this  ground  of  removal  exists. 

The  removal  acts  prior  to  the  Judicial  Code  contained 
no  provision  requiring  notice  of  intent  to  remove,  though 
some  cases  had  held  that  it  should  be  given  as  a  matter 
of  proper  practice,  especially  in  cases  based  on  prejudice 
and  local  influence.48  But  section  29  of  the  Judicial  Code 
requires  that  "written  notice  of  said  petition  and  bond  for 
removal  shall  be  given  the  adverse  party  or  parties  prior  to 
filing  the  same." 

This  however  applies  only  to  cases  removed  under  the 
twenty-eighth  section,  and  even  as  to  them,  excludes  cas- 
es removed  on  the  ground  of  prejudice  and  local  influence. 
The  provision  is  not  jurisdictional,  but  it  is  one  of  sub- 
stance unless  waived.49 

As  has  been  seen,  the  cases  covered  by  section  28  in- 
clude the  great  majority  of  removable  cases.  Section  30, 
relating  to  removals  under  conflicting  state  land  grants, 
does  not  in  terms  require  notice,  but  the  proceedings  to 
remove  in  that  case  are  in  court,  so  that  parties  are  pre- 
sumed to  have  notice. 

Section  31,  regulating  removals  on  the  ground  of  denial 
of  equal  civil  rights,  and  section  33,  regulating  removals 
of  suits  under  revenue  laws,  do  not  require  notice. 

is  Creagh  v.  Equitable  Life  Assur.  Soc.  of  United  States  (C.  C.)  83 
Fed.  849;  Ashe  v.  Union  Cent  Life  Ins.  Co.  (C.  C.)  115  Fed.  234; 
Schwenk  &  Co.  v.  Strang,  59  Fed.  209,  8  C.  C.  A.  92.  See  "Removal 
of  Causes,"  Dec,  Dig.  (Key-No.)  §§  84,  85;  Cent.  Dig.  §  164. 

49  Goins  v.  Southern  Pac.  Co.  (D.  C.)  198  Fed.  432.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §§  85,  10S;  Cent.  Dig.  §§  164,  221. 


§   130)  STEPS  AT  FILING   OF  PETITION  373 

The  statute  does  not  state  what  notice  is  required  or 
how  it  is  to  be  served.  As  the  petition  must  often  be  filed 
very  soon  after  suit  brought  in  order  to  be  in  time,  this  is 
apt  to  become  a  very  practical  question  where  the  plaintiff 
is  a  nonresident  and  represented  by  nonresident  counsel. 

When  the  petition  is  presented  to  the  state  court,  it  has 
the  right  to  consider  and  pass  upon  the  question  whether 
the  petition  upon  its  face  shows  a  removable  case.  It  has 
not,  however,  the  right  to  try  any  question  of  fact  bearing 
on  the  question  of  jurisdiction,  for  it  is,  under  the  language 
of  the  statute,  the  duty  of  the  court  to  accept  the  petition 
and  bond  and  proceed  no  further  in  the  suit,  and  the  feder- 
al court  alone  can  try  the  questions  of  jurisdiction  depend- 
ing on  the  facts,  and  not  appearing  on  the  face  of  the  peti- 
tion.50 

While  it  is  made  the  duty  of  the  state  court  to  accept 
the  petition  and  bond,  and  that  it  should  enter  an  order 
doing  so,  its  failure  to  enter  such  an  order  does  not  de- 
feat the  right  of  removal,  but  the  petitioner  can  take  his 
transcript  of  the  record  and  file  it,  and  the  federal  court 
will  obtain  jurisdiction  of  the  case.81 

If  a  state  court  should  attempt  to  exercise  jurisdiction 
after  a  petition  is  filed  showing  a  removable  case,  the  fed- 
eral court  would  enjoin  the  parties  therein  from  proceed- 
ing.82 

so  STONE  v.  SOUTH  CAROLINA,  117  IT.  S.  430,  6  Sup.  Ct.  799,  29 
L  Ed.  962;  Chesapeake  &  O.  R.  Co.  v.  McCabe,  213  U.  S.  207,  29 
Sup.  Ct.  430,  53  L.  Ed.  765;  Texas  &  P.  R.  Co.  v.  Eastin  &  Knox, 
214  U.  S.  153,  29  Sup.  Ct.  564,  53  L.  Ed.  946.  See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  89;  Cent.  Dig.  §§  189-201. 

01  Loop  v.  Winter's  Estate  (C.  C.)  115  Fed.  362;  Mannington  v. 
Hocking  Val.  R.  Co.  (C.  C.)  183  Fed.  133 ;  Stevenson  v.  Illinois  Cent 
R.  Co.  (C.  C.)  192  Fed.  956.  See  "Removal  of  Causes,"  Dec.  Dig. 
(Key-No.)  §  95;  Cent.  Dig.  §§  204,  205. 

52  Madisonville  Traction  Co.  v.  St  Bernard  Min.  Co.,  196  U.  S. 
239,  25  Sup.  Ct.  251,  49  L.  Ed.  462 ;  Donovan  v.  Wells  Fargo  &  Co., 
169  Fed.  363,  94  C.  C.  A.  609,  22  L.  R.  A.  (N.  S.)  1250.  See  "Courts:' 
Dec.  Dig.  (Key-No.)  §  508;  Cent.  Dig.  §  1430;  "Removal  of  Causes," 
Cent.  Dig.  §  209. 


374  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     (Ch.  16 

If  the  state  court  enters  an  order  denying  the  removal, 
the  petitioner  can  reserve  an  exception,  and  still  remove 
his  case  to  the  federal  court ;  and  his  remaining  in  the  state 
court  after  such  reservation  of  his  right  is  not  a  waiver  of 
his  right  of  removal.53 

In  such  case  the  petitioner  may  take  an  exception  to  the 
refusal  of  the  state  court,  and  then  remain  in  the  state 
court,  fight  the  case  out,  and  take  a  writ  of  error  from  the 
Supreme  Court  direct  to  the  court  of  last  resort  of  the 
state,  under  section  237  of  the  Judicial  Code,  giving  such 
right.64 

Or  he  may  remain  in  the  state  court,  fight  the  case  there, 
and  also  take  the  case  to  the  federal  court  and  fight  it  there 
at  the  same  time,  and  such  action  will  not  be  a  waiver  of 
his  rights.55 

But  if,  after  the  petition  is  filed,  the  state  court  dismisses 
as  to  the  removing  defendants,  the  other  parties  who  re- 
main and  fight  the  case  out  cannot  question  its  jurisdic- 
tion.56 

If  the  removal  is  to  the  wrong  federal  court,  this  mis- 
take is  a  jurisdictional  one,  and  the  court  does  not  acquire 
cognizance  of  the  case.57 

es  Kirby  v.  Chicago  &  N.  W.  R.  Co.  (C.  C.)  106  Fed.  551;  Remsen 
v.  C.  F.  Blanke  Tea  &  Coffee  Co.  (C.  C.)  189  Fed.  418.  See  "Removal 
of  Causes"  Dec.  Dig.  (Key-No.)  §  11;  Cent.  Dig.  §  10;  "Courts," 
Cent.  Dig.  §  150. 

s*  STONE  v.  SOUTH  CAROLINA,  117  U.  S.  430,  6  Sup.  Ct.  799,  29 
L.  Ed.  962.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  97; 
Cent.  Dig.  §§  206,  207. 

G  o  Kern  v.  Huidekoper,  103  U.  S.  485,  26  L.  Ed.  354;  CHESA- 
PEAKE &  O.  RY.  CO.  v.  WHITE,  111  U.  S.  134,  4  Sup.  Ct  353,  28 
L.  Ed.  378 ;  Hickman  v.  Missouri,  K.  &  T.  R.  Co.  (C.  C.)  97  Fed.  113. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  17;  Cent.  Dig.  §  10. 

56  Anderson  v.  United  Realty  Co.,  222  U.  S.  164,  32  Sup.  Ct.  50,  56 
L.  Ed.  144.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §§  17,  89; 
Cent.  Dig.  §  10. 

57  in  re  State  Ins.  Co.,  18  Wall.  417,  21  L.  Ed.  904.    See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  14;  Cent.  Dig.  §  35. 


§    131)      FILING  AND  PROCEDURE  IN  FEDERAL  COURT  375 


FILING  AND  SUBSEQUENT  PROCEDURE  IN  FED- 
ERAL COURT 

131.  In  the  great  majority  of  removable  cases  the  act  re- 
quires a  transcript  of  the  record  to  be  filed  in  the 
district  court  in  the  district  where  the  suit  is  pend- 
ing, and  within  thirty  days  from  the  date  of  filing 
the  petition.  This  means  the  federal  court  of  the 
district  which  includes  territorially  the  state  court 
where  the  suit  is  pending  at  the  time  of  removal. 
The  place  where  the  suit  originated  does  not  af- 
fect the  question.58  The  jurisdiction  of  the  fed- 
eral court  vests  as  of  the  time  of  filing  the  peti- 
tion in  the  state  court. 

Under  section  29  of  the  Judicial  Code,  the  cases  covered 
by  the  twenty-eighth  section,  which  are  the  vast  major- 
ity of  those  met  in  practice,  must  be  removed  by  filing  the 
transcript  of  the  record  in  the  federal  court  "within  thirty 
days  from  the  time  of  filing  said  petition"  in  the  state 
court,  except  as  to  cases  based  on  prejudice  and  local  in- 
fluence. This  is  quite  a  change  from  the  earlier  acts, 
which  required  the  record  to  be  filed  in  the  federal  court 
"on  the  first  day  of  its  then  next  session."  But  cases  re- 
movable because  turning  on  conflicting  state  land  grants, 
those  removable  as  turning  on  the  denial  of  equal  civil 
rights,  and  those  turning  on  the  revenue  law  section  must 
be  removed  "for  trial  to  the  district  court  of  the  United 
States  next  to  be  holden  in  said  district." 

The  jurisdiction  of  the  federal  court  attaches  as  of  the 
date  of  filing  the  petition  in  the  state  court.  Even  during 
the  interval  between  the  filing  of  the  petition  in  the  state 
court  and  the  transcript  of  the  record  in  the  federal  court, 

B»  Hess  v.  Reynolds,  113  U.  S.  73,  5  Sup.  Ct.  377,  28  L.  Ed.  927. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §  190. 


376  DISTRICT  COURT — JURISDICTION   BY    REMOVAL     (Ch.  16 

the  latter  has  jurisdiction,  and  will  make  any  orders  nec- 
essary for  the  preservation  of  the  property,  etc.69 

There  is  some  difference  in  the  decisions  on  the  ques- 
tion whether  the  federal  court  during  this  interval  has  suf- 
ficient jurisdiction  to  preserve  the  property  and  enter  pre- 
liminary orders,  or  whether  it  has  jurisdiction  over  the 
whole  case.  The  rational  view  is  taken  by  Judge  Severens 
in  Torrent  v.  S.  K.  Martin  Lumber  Co.60  In  it  he  says 
that  there  is  no  intermediate  state  during  which  neither 
court  has  jurisdiction,  but  that  the  federal  court  has  full 
jurisdiction  over  the  subject;  that,  in  the  exercise  of  its 
jurisdiction,  it  must  regard  the  established  rules  and  prac- 
tice, but  that  questions  as  to  hearing  the  case  too  soon,  or 
matters  of  that  sort,  are  questions  of  procedure,  and  not 
of  jurisdiction. 

No  formal  order  of  the  federal  court  placing  the  case  on 
the  docket  is  required.  It  need  simply  be  filed,  and,  un- 
der the  older  acts  it  was  held  that,  though  it  is  filed  before 
the  first  day  of  the  term,  it  takes  effect  as  of  the  first  day, 
if  on  file  at  that  time.61 

Further  Pleadings 

Although,  as  Judge  Severens  says,  there  is  no  inter- 
mediate state  between  the  two  courts,  as  far  as  jurisdic- 
tion is  concerned,  and  the  jurisdiction  of  the  federal  court 
attaches  as  soon  as  the  petition  is  filed  in  the  state  court, 
there  is  an  intermediate  state  of  the  case  in  one  respect, 
and  that  is  in  reference  to  the  pleadings.  As  soon  as  the 
petition  is  filed  in  the  state  court,  that  court  can  proceed 
no  further.  Hence,  if  the  record  was  filed  in  the  clerk's 
office,  if  at  rules,  no  rules  can  be  taken  upon  it,  nor  ca-n 


59  Texas  &  St.  L.  R.  Co.  v.  Rust  (C.  C.)  17  Fed.  275.     See  "Re- 
moval of  Causes,"  Dec.  Dig.  (Key-No.)  §  95;  Cent.  Dig.  §§  204,  205. 

l«o  (C.  C.)  37  Fed.  727.     See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §§  95,  118;   Cent.  Dig.  §§  204,  205,  240. 

ei  Glover  v.  Shepperd  (C.  C.)  15  Fed.  833.    See  "Removal  of  Caus- 
es," Dec.  Dig.  (Key-No.)  §  93;   Cent.  Dig.  §  191. 


§    131)      FILING  AND  PBOCEDURE   IN  FEDERAL  COURT  377 

any  default  be  entered  after  the  filing  of  such  petition.  On 
the  other  hand,  until  the  filing  of  the  transcript  of  the  rec- 
ord in  the  federal  court,  it  is  impossible  to  take  any  rules 
or  enter  any  orders  of  default  in  that  court,  for  the  case  is 
not  there  for  the  purpose.  Hence,  as  far  as  maturing  the 
case  to  issue  is  concerned,  there  is,  if  not  an  intermediate 
state,  at  least  a  period  of  suspended  animation,  during 
which  the  case  remains  in  statu  quo.  As  soon  as  filed  in 
the  federal  court,  then  the  case  revives,  and  the  parties  are 
required  by  section  29  of  the  Judicial  Code  to  plead,  an- 
swer, or  demur  within  thirty  days  after  so  filing  the  record. 
A  failure  to  file  the  record  within  the  required  time  will 
not  defeat  the  right  of  removal,  as  the  delay  is  not  a  ju- 
risdictional  defect.  In  fact,  if  the  state  court  wrongfully 
refuses  to  remove  the  case,  and  the  petitioner  saves  his  ex- 
ception, and  does  not  file  his  record  in  the  federal  court, 
but  fights  the  case  through  even  to  the  Supreme  Court 
of  the  United  States  on  the  question  of  his  right  of  re- 
moval, and  wins,  he  can,  after  such  successful  contest, 
still  file  his  record  in  the  federal  court.62 

Place  of  Removal  When  Court  Sits  in  Different  Localities 

In  many  districts  the  court  meets  at  different  points,  and 
it  then  becomes  a  question  where  the  record  should  be  filed. 
In  the  Eastern  district  of  Virginia,  for  illustration,  there 
is  but  one  district  court  for  the  whole  district,  and  there 
are  no  laws  requiring  cases  in  certain  portions  of  the  ter- 
ritory of  that  district  to  be  brought  at  certain  points.  The 
court  meets  at  three  places — Richmond,  Norfolk,  and  Alex- 
andria— but  it  is  one  court,  and  has  but  one  clerk,  and  its 
jurisdiction  extends  over  the  entire  district. 

In  such  cases  there  is  no  reason  why  it  may  not  be  filed 
at  any  place  where  the  court  sits,  that  being  a  mere  ques- 

«2  Baltimore  &  O.  Ry.  Co.  v.  Koontz,  104  U.  S.  5,  26  L.  Ed.  043 ; 
National  S.  S.  Co.  v.  Tugman,  106  U.  S.  118,  1  Sup.  Ct.  58,  27  L.  Ed. 
87.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-Ho.)  §  95;  Cent.  Dig. 
8  204. 


378  DISTRICT  COURT — JURISDICTION    BY    REMOVAL     ( Ch.  16 

tion  of  convenience.  But  as  to  districts  containing  more 
than  one  division,  section  53  of  the  Judicial  Code  provides 
that  "in  all  cases  of  the  removal  of  suits  from  the  courts 
of  a  state  to  the  district  court  of  the  United  States  such 
removal  shall  be  to  the  United  States  district  court  in 
the  division  in  which  the  county  is  situated  from  which 
the  removal  is  made;  and  the  time  within  which  the  re- 
moval shall  be  perfected,  in  so  far  as  it  refers  to  or  is  regu- 
lated by  the  terms  of  United  States  courts,  shall  be  deemed 
to  refer  to  the  terms  of  the  United  States  district  court  in 
such  division." 

When  the  record  is  filed  too  late,  the  court  has  a  legal 
discretion  whether  to  remand  or  not.63 

It  may  happen  that  the  defendant,  after  filing  his  peti- 
tion in  the  state  court,  will  purposely  not  file  it  in  the  fed- 
eral court.  In  order  to  prevent  any  injustice  under  these 
circumstances,  it  has  been  held  that  the  plaintiff  himself 
may  file  the  record  in  the  federal  court,  and  then  move  to 
remand.64 

Power  of  Federal  Court  after  Removal 

The  twenty-ninth  section  of  the  Judicial  Code  provides 
I  that  the  case  thereupon  proceeds  in  the  same  manner  as  if 
it  had  originally  been  commenced  in  the  district  court. 
However,  the  federal  court  only  attains  the  jurisdiction 
which  the  state  court  had,  and  hence  any  point  can  be 
made  in  the  federal  court  that  could  have  been  made  in 
the  state  court.65  But  the  plaintiff  may  dismiss  after  re- 
moval, and  sue  again  in  the  state  court.66 

63  Kidder  v.  Featteau  (C.  C.)  2  Fed.  616;  St.  Paul  &  C.  R.  Co.  v. 
McLean,  108  U.  S.  212,  2  Sup.  Ct.  498,  27  L.  Ed.  703.  See  "Removal 
of  Causes,"  Dec.  Dig.  (Key-No.)  §  102;  Cent.  Dig.  §  223. 

e*  Anderson  v.  Appleton  (C.  C.)  32  Fed.  855.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §  218. 

es  East  Tennessee,  V.  &  G.  R.  Co.  v.  Southern  Tel.  Co.,  112  U.  S. 
306,  5  Sup.  Ct.  168,  28  L.  Ed.  746.  On  the  other  hand,  the  federal 

66  See  note  66  on  following  page. 


§    131)      FILING   AND  PROCEDDEE   IN   FEDEEAL  COUBT  379 

The  petitioner  after  removal  may  make  points  question- 
ing the  jurisdiction  of  the  case  on  the  ground  of  improper 
service  of  process,  or  other  points  for  which  a  special  ap- 
pearance would  have  to  be  entered,  for  the  filing  of  the  pe- 
tition for  removal  is  not  a  general  appearance.  The  rea- 
son of  this  is  that  the  object  of  removing  a  case  is  to  give 
the  federal  court  jurisdiction  to  try  any  questions  that  can  V 
arise  in  the  case,  as  it  is  necessary  for  the  protection  of  the 
nonresident  defendant  that  the  federal  court  may  pass  up- 
on all  questions  involved. 

In  Goldey  v.  Morning  News 6T  the  petition  for  removal 
stated  upon  its  face  that  it  was  intended  only  as  a  special 
appearance,  and  the  court  held  that  when  so  worded  it 
had  only  that  effect. 

But  in  Wabash  Western  Ry.  Co.  v.  Brow  68  the  petition 
was  in  the  ordinary  form,  and  did  not  purport  on  its  face 
to  be  a  special  appearance.  The  court  held  in  this  case, 
also,  that  it  was,  in  law,  only  a  special  appearance,  and 
was  not  a  waiver  of  the  right  to  raise  any  defects  even  in 
the  service  of  process. 

court  after  removal  can  act  on  questions  pending  at  filing  petition, 
or  take  up  any  growing  out  of  attachment  proceedings.  Mannington 
v.  Hockington  Val.  R.  Co.  (C.  C.)  183  Fed.  133;  Clark  v.  Wells,  203 
U.  S.  164,  27  Sup.  Ct.  43,  51  L.  Ed.  138.  See  "Removal  of  Causes," 
Dec.  Dig.  (Key-No.)  §  111;  Cent.  Dig.  §§  237-239. 

so  Southern  R.  Co.  v.  Miller,  217  U.  S.  209,  30  Sup.  Ct.  450,  54  L. 
Ed.  732.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  109;  Cent. 
Dig.  §  235. 

67 156  U.  S.  518,  15  Sup.  Ct.  559,  39  L.  Ed.  517.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  112;  Cent.  Dig.  §  238. 

68  164  U.  S.  271,  17  Sup.  Ct.  126,  41  L.  Ed.  431.  See,  also,  Clark 
v.  Wells,  203  U.  S.  164,  27  Sup.  Ct  43.  51  L.  Ed.  138;  Mechanical 
Appliance  Co.  v.  Castleman,  215  U.  S.  437,  30  Sup.  Ct.  125,  54  L.  Ed. 
272;  Murphy  v.  Herring-Hall-Marvin  Safe  Co.  (C.  C.)  184  Fed.  495. 
See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  112;  Cent.  Dig.  I 
238. 


380  DISTRICT  COURT JURISDICTION    BY    REMOVAL     (Ch.  16 


MOTION  TO  REMAND 

132.  The  proper  way  for  the  party  who  opposes  the  re- 
moval to  question  the  jurisdiction  of  the  court  is 
by  a  motion  made  in  the  federal  court  to  remand 
the  case  to  the  state  court.  On  this  motion  in  the 
federal  court  he  can  try  both  questions  of  law  and 
fact,  but  the  allegations  of  the  petition  are  prima 
facie  to  be  taken  as  true.69  The  decision  of  the 
district  court  remanding  the  case  is  not  appeal- 
able. 

The  act  provides  that,  if  the  federal  court  remands  the 
case,  there  can  be  no  appeal  from  this  decision ;  and  this 
means  not  only  that  there  can  be  no  direct  process  to  re- 
view the  decision  by  appeal  or  writ  of  error,  but  that  it 
cannot  be  questioned  by  any  other  process,  like  mandamus. 
The  decision  of  the  district  court  on  the  subject  is  final.70 

Nor  can  the  remanding  of  the  case  by  the  court  be  ques- 
tioned by  writ  of  error  to  the  state  court  after  the  state  court 
has  resumed  jurisdiction. 

In  Missouri  Pac.  Ry.  Co.  v.  Fitzgerald,71  the  state  court 
had  first  entered  an  order  removing  the  case,  and  then  the 
circuit  court  had  remanded  it.  The  case  thereupon  pro- 

69  Loop  v.  Winter's  Estate  (C.  C.)  115  Fed.  362;    Camp  v.  Field 
(C.  C.)  189  Fed.  285.    On  such  a  motion  the  federal  court  may  exam- 
ine the  question  of  good  faith  when  it  is  alleged  that  parties  are 
joined  to  defeat  jurisdiction.     Clark  v.  Chicago,  R.  I.  &  P.  R.  Co. 
(D.  C.)  194  Fed.  505.    See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  § 
107;   Cent.  Dig.  §§  225-234. 

70  Ex  parte  Pennsylvania  Co.,  137  U.  S.  451,  11  Sup.  Ct.  141,  34 
L.  Ed.  738 ;  Powers  v.  Chesapeake  &  O.  R.  Co.,  169  U.  S.  92,  18  Sup. 
Ct.  264,  42  L.  Ed.  673.     See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  107;   Cent.  Dig.  §§  225-234;    "Appeal  and  Error,"  Cent.  Dig. 
§§  724,  725. 

71 160  U.  S.  556,  16  Sup.  Ct  389,  40  L.  Ed.  536.  See  "Removal  of 
Causes,"  Dec.  Dig.  (Key-No.)  §  107;  Cent.  Dig.  §§  225-234;  "Appeal 
and  Error,"  Cent.  Dig.  §§  724,  725. 


§    132)  MOTION   TO   REMAND  381 

ceeded  in  the  state  court,  and  the  party  who  had  originally 
petitioned  for  its  removal  took  out  a  writ  of  error  to  the 
state  court  from  the  Supreme  Court  on  the  ground  that  he 
was  denied  a  federal  right.  The  Supreme  Court  held  that 
his  denial  of  this  right  was  not  by  the  state  court,  but  by 
the  circuit  court,  and  that  its  acts  could  not  be  reviewed  in 
this  indirect  way. 

The  refusal  of  the  court  to  remand  a  case  can  be  made 
the  subject  of  exception,  and  can  be  taken  up  after  a  final  de- 
cree in  the  case.  It  is,  however,  not  a  final  decree.72 

After  a  case  is  remanded  to  the  state  court,  its  jurisdic- 
tion revests,  and  the  case  proceeds  there  just  as  it  would 
have  done  in  the  first  instance.73 

Mandamus  will  lie  to  compel  remand  of  case  over  which 
the  federal  court  has  no  jurisdiction.74 

72  Edrington  v.  Jefferson,  111  U.  S.  770,  4  Sup.  Ct.  683,  28  L.  Ed. 
594 ;  Bender  v.  Pennsylvania  Co.,  148  U.  S.  502,  13  Sup.  Ct.  640,  37 
L.  Ed.  537.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  §  107; 
Cent.  Dig.  §§  225-234- 

"Birdseye  v.  Shaeffer  (C.  C.)  37  Fed.  821;  Des'Moines  &  Missis- 
sippi Levee  Dist.  No.  1  v.  Chicago,  B.  &  Q.  R.  Co.,  240  Mo.  614,  145 
S.  W.  35,  39  L.  R.  A.  (N.  S.)  543 ;  Queen  Ins.  Co.  v.  Peters,  10  Ga. 
App.  289,  73  S.  E.  536.  See  "Removal  of  Causes,"  Dec.  Dig.  (Key- 
No.)  §  109;  Cent.  Dig.  §  2S5. 

i  *  In  re  Wisner,  203  U.  S.  449,  27  Sup.  Ct  150,  51  L.  Ed.  264.  See 
"Removal  of  Causes,"  Dec.  Dig.  (Key-No.)  {  109;  Cent.  Dig.  §  23-5. 


382  OTHEB  COURTS — ORIGINAL  JURISDICTION        (Ch.  17 

» 

CHAPTER  XVII 

OTHER    COURTS    VESTED    WITH    ORIGINAL    JURISDICTION 

133.  The  Supreme  Court. 

134.  Other  Courts  of  Less  General  Interest 

THE   SUPREME  COURT  AS  A  COURT  OF   ORIG- 
INAL JURISDICTION 

133.  The  Supreme  Court  of  the  United  States  exercises 
original  jurisdiction  in  cases  affecting  ambassa- 
dors, public  ministers,  and  consuls,  and  civil  cases 
involving  controversies  where  a  state  is  a  party, 
comprehending  controversies : 

(a)  Between  states — Jurisdiction  exclusive. 

(b)  Between  the  United  States  and  a  state. 

(c)  Between  a  state  and  citizens  of  another  or  other 

states. 

(d)  Between  a  state  and  an  alien  or  aliens. 

The  third  article  of  the  Constitution  requires  that  there 
shall  be  one  Supreme  Court,  and  this  is  the  only  court  es- 
tablished by  the  Constitution  itself.  The  second  section 
of  the  same  article  defines  the  federal  judicial  power,  and, 
among  others,  names  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  controversies  between  two 
or  more  states,  and  controversies  between  a  state  and  cit- 
izens of  another  state. 

The  same  section  further  provides  that  in  all  cases  af- 
fecting ambassadors,  other  public  ministers,  and  consuls,, 
and  those  in  which  a  state  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  This  provision  giv- 
ing original  jurisdiction  to  the  Supreme  Court  direct,  does- 


§    133)        SUPBEME  COURT — ORIGINAL  JURISDICTION  383 

not,  however,  prevent  Congress  from  conferring  concurrent 
jurisdiction  in  those  cases  on  other  federal  courts.1 

Acting  under  this  grant,  Congress,  by  section  233  of  the 
Judicial  Code,  has  provided  as  follows: 

"The  Supreme  Court  shall  have  exclusive  jurisdiction  of 
all  controversies  of  a  civil  nature  where  a  state  is  a  party, 
except  between  a  state  and  its  citizens,  or  between  a  state 
and  citizens  of  other  states,  or  aliens,  in  which  latter  cases 
it  shall  have  original,  but  not  exclusive,  jurisdiction.  And 
it  shall  have  exclusively  all  such  jurisdiction  of  suits  or 
proceedings  against  ambassadors  or  other  public  minis- 
ters, or  their  domestics  or  domestic  servants,  as  a  court  of 
law  can  have  consistently  with  the  law  of  nations;  and 
original,  but  not  exclusive,  jurisdiction,  of  all  suits  brought 
by  ambassadors,  or  other  public  ministers,  or  in  which  a 
consul  or  vice-consul  is  a  party." 

Controversies  Where  a  State  is  a  Party 

The  statute  limits  these  cases  to  controversies  of  a  civil 
nature.  This  was  in  pursuance  of  the  decisions  rendered 
under  the  constitutional  grant,  which  had  held  that  the  in- 
tent of  the  Constitution  was  simply  to  confer  upon  the  fed- 
eral courts  jurisdiction  of  that  sort.  It  could  not  have 
been  the  intent  of  the  framers  of  the  Constitution  to  give 
the  federal  court  original  jurisdiction  of  criminal  proceed- 
ings in  a  state  court.2 

Proceedings  for  penalties,  or  a  suit  by  a  state  on  a  judg- 
ment recovered  under  a  statute  creating  a  penalty,  are  not 
within  the  grant.3 

iBors  v.  Preston,  111  U.  S.  252,  4  Sup.  Ct.  407,  28  L.  Ed.  419; 
Ames  v.  Kansas,  111  U.  S.  449,  4  Sup.  Ct.  437,  28  L.  Ed.  482.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  518;  Cent.  Dig.  §§  1109,  1444-1449. 

2  Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  379;  Cent.  Dig.  §  986. 

s  WISCONSIN  v.  PELICAN  INS.  CO.,  127  U.  S.  265,  8  Sup.  Ct. 
1370,  32  L.  Ed.  239.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  379;  Cent. 
Dig.  §  986. 


384  OTHER   COURTS — ORIGINAL  JURISDICTION        (Ch.  17 

Nor  was  it  the  intent  to  give  jurisdiction,  merely  because 
a  state  happens  to  be  named  as  a  party,  over  such  cases  as 
were  not  properly  cognizable  by  courts  of  justice — as,  for 
instance,  mere  political  questions.4 

Controversies  where  a  state  is  a  party  may  be  considered 
under  the  several  following  heads : 

1.  Controversies  between  states. 

2.  Controversies  between  the  United  States  and  states/ 

3.  Controversies  between  a  state  and  its  own  citizens. 

4.  Controversies   between  a  state  and  citizens  of  other 
states. 

5.  Controversies  between  states  and  aliens. 

Controversies  between  States 

In  this  case  the  jurisdiction  of  the  Supreme  Court  is  ex- 
clusive, it  being  thought  that  it  was  the  only  tribunal  of 
sufficient  dignity  to  justify  bringing  sovereign  states  before 
it.  The  states  alluded  to  are  states  of  the  Union.5 

And  it  means  states  as  a  unit,  not  mere  political  subdivi- 
sions of  states,  like  counties.6 

Same — Boundary  Disputes 

This  is  in  the  most  common  instance  in  which  jurisdic- 
tion has  been  exercised  by  the  Supreme  Court,  and  the  cases 
under  this  subject  are  quite  numerous.  In  such  case  the 
Supreme  Court  uses  the  forms  of  equity  proceedings,  and 
frames  its  own  pleadings  and  process  in  each  case.  An  in- 
teresting case  on  the  subject  is  Rhode  Island  v.  Massachu- 
setts.7 


4  State  of  Georgia  v.  Stanton,  6  Wall.  50,  IS  L.  Ed.  72L  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  379;  Cent.  Dig.  §§  985-989. 

s  Texas  v.  White,  7  Wall.  700,  19  L.  Ed.  227.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  304;  Cent.  Dig.  §§  986,  987. 

e  Lincoln  Co.  v.  Luning,  133  U.  S.  529,  10  Sup.  Ct.  363,  33  L.  Ed. 
766.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  804;  Cent.  Dig.  §§  986,  987. 

1 12  Pet  657,  9  L.  Ed.  1233 ;  13  Pet.  23,  10  L.  Ed.  41 ;  14  Pet  210, 
10  L.  Ed.  423 ;  15  Pet.  233,  10  L.  Ed.  721.  See,  also,  Louisiana  v. 
Mississippi,  202  U.  S.  1,  26  Sup.  Ct  408,  571,  50  L.  Ed.  913.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  304;  Cent.  Dig.  §  987. 


§   133)        SUPBEME  COURT — ORIGINAL  JURISDICTION  385 

Same — Other  Instances 

There  are  many  other  disputes  between  states,  however, 
which  come  within  this  act.  For  instance,  a  suit  by  Mis- 
souri against  Illinois  to  prevent  a  political  subdivision  of 
the  latter  state  from  emptying  into  the  Mississippi  river, 
by  a  drainage  canal,  the  sewerage  of  the  city  of  Chicago, 
was  held  within  the  jurisdiction  of  the  court.8 

This  provision,  however,  cannot  be  used  in  such  a  man- 
ner as  to  allow  a  state  having  no  interest  itself  to  permit 
the  use  of  its  name  to  its  citizens  for  the  purpose  of  collect- 
ing debts — as,  for  instance,  suits  by  a  state  for  the  benefit 
of  its  citizens  against  another  state  on  the  bonds  of  the 
latter.9 

But  where  the  state  is  the  actual  owner  of  the  bonds,  and 
those  bonds  are  secured  by  stock  pledged  by  way  of  mort- 
gage or  collateral,  the  Supreme  Court  has  jurisdiction  of  a 
suit  by  such  state,  as  owner,  at  least  to  the  extent  of  fore- 
closing its  mortgage,  although  the  bonds  were  merely  giv- 
en to  the  state,  and  although  the  motive  of  the  donors  was 
to  enable  the  state  to  test  their  validity  by  such  suit.10 

The  jurisdiction  extends  to  a  suit  by  Virginia  against 
West  Virginia  to  compel  the  latter  to  assume  its  just  pro- 
portion of  the  debt  due  by  the  state  before  the  division.11 

On  the  other  hand,  a  suit  by  a  state  against  another  state 
to  prevent  the  use  by  the  latter  state  of  its  quarantine  laws 

s  MISSOURI  v.  ILLINOIS,  180  U.  S.  208,  21  Sup.  Ct  331,  45  L. 
Ed.  497.  So  a  suit  by  one  state  to  prevent  the  appropriation  by  an- 
other state  of  the  waters  of  a  river  flowing  through  both.  Kansas  v. 
Colorado,  206  U.  S.  46,  27  Sup.  Ct  655,  51  L.  Ed.  956.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  304;  Cent.  Dig.  §§  986,  987. 

»  New  Hampshire  v.  Louisiana,  108  U.  S.  76,  2  Sup.  Ct  176,  27 
L.  Ed.  656.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  304;  Cent.  Dig.  § 
986. 

10  SOUTH  DAKOTA  v.  NORTH  CAROLINA,  192  U.  S.  286,  24  Sup. 
Ct  269,  48  L.  Ed.  448.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  S04; 
Cent.  Dig.  §  986. 

11  Virginia  v.  West  Virginia,  206  U.  S.  290,  27  Sup.  Ct  732,  51  L. 
Ed.  1068;    Id,,  220  U.  S.  1,  31  Sup.  Ct  330,  55  L.  Ed.  353.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  SO//;   Cent.  Dig.  §  986. 

HUGHES  FED.PB.(2o  ED.) — 25 


386  OTHER   COURTS — ORIGINAL  JURISDICTION        (Ch.  17 

in  such  a  way  as  to  affect  the  commerce  of  citizens  of  the 
plaintiff  state  cannot  be  sustained,  since  the  state,  as  a 
state,  would  have  no  interest  in  such  a  suit,  but  it  would 
really  be  for  the  benefit  of  its  citizens  alone.12 

Controversies  Between  the  United  States  and  a  State 

The  Supreme  Court  has  jurisdiction  of  such  controver- 
sies, where  the  United  States  are  plaintiffs,  but  not  where 
they  are  defendants.13 

Controversies  Between  a  State  and  Its  Own  Citizens 

Notwithstanding  the  broad  language  of  the  section  de- 
fining the  jurisdiction,  there  is  no  cognizance  of  such  cases, 
whether  the  state  is  plaintiff  or  defendant.14 

And  under  the  influence  of  the  principle  so  often  applied 
in  the  federal  courts  that  the  jurisdiction  must  exist  as  to 
all  the  parties  on  both  sides,  the  joinder  of  a  citizen  of  a 
state  with  citizens  of  other  states  will  defeat  jurisdiction  of 
a  suit  brought  by  a  state.16 

Controversies  Between  a  State  and  Citizens  of  Another  State 
Soon  after  the  adoption  of  the  Constitution,  the  Supreme 
Court  decided  in  Chisholm  v.  Georgia,16  that  this  consti- 
tutional grant  enabled  a  citizen  of  another  state  to  sue  a 
state  in  the  Supreme  Court.    The  uproar  created  by  this 
decision  is  well  known  in  our  political  history,  and  resulted 
in  the  adoption  of  the  eleventh  amendment,  which  express- 
is  Louisiana  v.  Texas,  176  TJ.  S.  1,  20  Sup.  Ct  251,  44  L.  Ed.  347. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  804;    Cent.  Dig.  §  986. 

isu.  S.  v.  Texas,  143  U.  S.  621,  12  Sup.  Ct.  488,  36  L.  Ed.  285; 
Kansas  v.  U.  S.,  204  U.  S.  331,  27  Sup.  Ct.  388,  51  L.  Ed.  510.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  302;  Cent.  Dig.  §§  8^3,  986. 

i*Hans  v.  Louisiana,  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  Ed.  842; 
Pennsylvania  v.  Quicksilver  Min.  Co.,  10  Wall.  553,  19  L.  Ed.  998. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  308;  Cent.  Dig.  §  844. 

is  California  v.  Southern  Pac.  Co.,  157  U.  S.  229,  15  Sup.  Ct.  591, 
39  L.  Ed.  683.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  303,  304;  Cent. 
Dig.  §§  844,  844V2;  "States,"  Cent.  Dig.  §§  191,  192. 

is  2  Dall.  419,  1  L.  Ed.  440.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
303;  Cent.  Dig.  §§  844,  844Ys;  "States,"  Cent.  Dig.  §§  191,  192. 


§    134)        VARIOUS   COURTS — ORIGINAL  JURISDICTION  387 

ly  forbade  such  suits,  so  that  a  state  cannot  now  be  made 
a  defendant  at  the  suit  of  a  citizen  of  another  state.17 

Controversies  Between  a  State  and  Aliens 

The  same  principle  would  prevent  an  alien  from  suing 
a  state  as  defendant,  and  it  is  perfectly  clear  that  a  suit  be- 
tween aliens  and  a  private  citizen  would  not  come  under 
this  classification.18 

Proceedings  Against  Ambassadors 

These  suits  only  lie  in  cases  where  such  parties  can  be 
sued  under  the  general  principles  of  international  law ;  and 
the  provision  does  not  apply  to  a  citizen  of  the  United 
States,  though  he  may  be  a  consul  general  of  a  foreign 
power,  when  he  is  merely  acting  temporarily  in  the  ab- 
sence of  the  regular  diplomatic  representative.19 


VARIOUS  OTHER  COURTS  OF  ORIGINAL  JURIS- 
DICTION 

134.  Besides  the  courts  heretofore  discussed,  there  are  oth- 
er important  federal  courts  vested  with  original 
jurisdiction  but  not  of  general  interest  to  the  prac- 
titioner, and  hence  beyond  the  purview  of  this 
treatise.  Such  are  the  court  of  claims,  the  court 
of  customs  appeals,  the  commerce  court,  the  courts 
of  original  jurisdiction  in  the  District  of  Columbia, 
and  the  courts  of  the  territories  or  dependencies. 

IT  Hagood  v.  Southern,  117  U.  S.  52,  6  Sup.  Ct  608,  29  L.  Ed.  805. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  SOS;  Cent.  Dig.  §§  844,  844%; 
"States,"  Cent.  Dig.  §§  191,  192. 

is  in  re  Barry,  2  How.  65,  11  L.  Ed.  181.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  303;  Cent.  Dig.  §§  844,  844U,  990. 

i»  In  re  Baiz,  135  U.  S.  403,  10  Sup.  Ct  854,  34  L.  Ed.  222.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  301;  Cent.  Dig.  §  842. 


388  OTHER  COURTS — ORIGINAL  JURISDICTION        (Ch.  17 

The  Court  of  Claims 

This  was  for  a  long  time  the  only  court  in  which  the 
United  States  could  be  sued.  Its  jurisdiction  covers  that 
conferred  on  the  district  court  and  a  good  deal  more.  Its 
organization  and  jurisdiction  are  set  out  in  sections  136- 
187  of  the  Judicial  Code. 

The  Court  of  Customs  Appeals 

The  organization  and  jurisdiction  of  this  court  are  set 
out  in  sections  188-199  of  the  Judicial  Code. 

The  Commerce  Court 

This  court  started  out  under  bright  auspices,  but  some  of 
its  decisions  were  unsatisfactory,  so  that  the  necessary  ap- 
propriations to  keep  it  up  have  been  withheld.  Its  organiza- 
tion and  jurisdiction  are  embodied  in  sections  200-214  of 
the  Judicial  Code.  It  was  composed  of  circuit  judges,  five 
new  ones  having  been  provided  by  the  act  establishing  the 
court;  and  these  with  the  former  circuit  judges  were  de- 
signed to  sit  on  this  court  and  on  the  circuit  courts  of  ap- 
peals in  rotation.20 

Courts  of  the  Territories  or  Dependencies 

Their  organization  and  jurisdiction  are  set  out  in  the  spe- 
cial statutes  relating  to  Alaska,  Hawaii,  Porto  Rico  and  the 
Philippines,  and  are  of  no  general  interest. 

20  The  following  are  some  of  the  decisions  rendered  by  this  court 
during  its  brief  life,  and  their  fate  in  the  Supreme  Court :  Proctor 
&  Gamble  Co.  v.  U.  S.,  188  Fed.  221,  reversed  225  U.  S.  282,  32  Sup. 
Ct.  761,  56  L.  Ed.  1091;  Hooker  v.  Interstate  Commerce  Commis- 
sion, 188  Fed.  242,  reversed  225  U.  S.  302,  32  Sup.  Ct.  769,  56  L.  Ed. 
1089;  Interstate  Commerce  Commission  v.  Baltimore  &  O.  R.  Co., 
225  U.  S.  326,  32  Sup.  Ct  742,  56  L.  Ed.  1107;  U.  S.  v.  Baltimore  & 
O.  R.  Co.,  225  U.  S.  306,  32  Sap.  Ct  817,  56  L.  Ed.  1100.  After  the 
main  text  was  written  and  on  the  eve  of  the  appearance  of  this  work 
the  deficiency  appropriation  act  of  October  22,  1913,  abolished  this 
court  and  transferred  its  jurisdiction  to  the  district  courts.  See  Ap- 
pendix, post,  p.  701.  See  "Commerce"  Dec.  Dig.  (Key-No.)  §  92. 


§    135)  PROCEDURE — ORIGINAL  JURISDICTION  389 


CHAPTER  XVIII 

PROCEDURE  IN  THE   ORDINARY  FEDERAL   COURTS  OF 
ORIGINAL  JURISDICTION— COURTS   OF  LAW 

135.  Distinction  between  Law  and  Equity. 

136.  Procedure  in  Courts  of  Law. 

137.  Same — Process. 

138.  Same — Attachments. 

139.  Same — Appearances. 

140.  Same — Parties  to  Common-Law  Actions. 

141.  Same — Pleading. 

142.  Same — Continuances. 

143.  Same— Trial. 

144.  Same — Same — Evidence. 

145.  Same — Same — Instructions  to  Jury. 

146.  Same — Same — Bill  of  Exceptions. 

147.  Same — Same — Verdict. 

148.  Same — Motion  for  New  Trial. 

149.  Same — Motion  in  Arrest  of  Judgment. 

150.  Same — Judgment. 

151.  Same — Execution. 


DISTINCTION  BETWEEN  LAW  AND  EQUITY 

135.  The  distinction  between  law  and  equity  in  the  federal 
courts  in  all  matters  of  procedure  is  carefully  pre- 
served and  guarded,  for  it  is  a  distinction  made  by 
the  Constitution.  Hence  the  federal  courts  pre- 
serve this  distinction,  and  are  not  affected  by  the 
reform  procedure  adopted  in  many  of  the  state 
courts  abolishing  it. 

Equitable  Titles 

For  this  reason  equitable  titles  or  suits  of  an  equitable 
nature  cannot  be  sustained  on  the  common-law  side  of  the 
federal  court,  nor  can  a  state  statute  prescribing  a  remedy 
at  law  for  a  cause  of  action  essentially  equitable  in  its  na- 
ture apply  to  the  federal  courts.1 

i  Fenn  v.  Holme,  21  How.  481,  16  L.  Ed.  198 ;  Lindsay  v.  First 
Nat.  Bank,  156  U.  S.  485,  15  Sup.  Ct.  472,  39  L.  Ed.  505 ;  McKerny 


390  PBOCEDUBE — ORIGINAL  JURISDICTION  (Ch.  18 

On  the  same  principle,  although  the  federal  courts  will 
follow  the  state  courts  in  their  rules  as  to  the  joinder  of 
causes  of  action,  provided  the  causes  of  action  are  all  legal 
in  their  nature,  they  will  not  allow  the  joinder  of  legal  and 
equitable  causes  of  action  in  one  suit.2 

Equitable  Defenses 

So,  too,  equitable  defenses  cannot  be  set  up  in  the  fed- 
eral courts  in  actions  at  law.  For  instance,  they  cannot 
take  cognizance  of  a  plea  of  equitable  set-off;3  nor  of  an 
equitable  title  in  defense  to  an  action  of  ejectment.4  But 
many  defenses  equitable  in  nature  may  be  proved  by  way 
of  counterclaim  under  a  plea  of  the  general  issue  or  pay- 
ment, if  growing  out  of  the  same  transaction;  that  being 
allowable  under  the  later  common-law  decisions.5 

Nor  can  a  reply  to  a  plea  be  made  which  sets  up  an  equit- 
able ground  as  a  means  of  defeating  the  defense  made  by 
the  plea;  as,  for  instance,  where  the  defendant  pleaded  a 
release,  the  plaintiff  cannot  reply  that  the  release  was  ob- 
tained by  fraud  and  misrepresentation,  though  the  state 
practice  allowed  it.6 

v.  Supreme  Lodge  A.  O.  U.  W.,  180  Fed.  961,  104  C.  C.  A.  117.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  342;  Cent.  Dig.  §§  912,  913. 

2  SCOTT  v.  NEELY,  140  U.  S.  106,  11  Sup.  Ct.  712,  35  L.  Ed. 
358 ;  Bennett  v.  Butterworth,  11  How.  669,  13  L.  Ed.  859 ;  American 
Creosote  Works  v.  C.  Lembcke  &  Co.  (C.  C.)  165  Fed.  809.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  342;  Cent.  Dig.  §§  912,  913. 

s  Scott  v.  Armstrong,  146  U.  S.  499,  13  Sup.  Ct.  148,  36  L.  Ed. 
1059;  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  22  Sup.  Ct. 
431,  46  L.  Ed.  679.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  342;  Cent. 
Dig.  §§  912,  913. 

*  Schoolfield  v.  Rhodes,  82  Fed.  153,  27  C.  C.  A.  95.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  342;  Cent.  Dig.  §§  912,  913. 

B  DU  SHANE  v.  BENEDICT,  120  U.  S.  630,  7  Sup.  Ct.  696,  30  L. 
Ed.  810.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  342;  Cent.  Dig.  §§ 
912  913 

e'ffill  v.  Northern  Pac.  R.  Co.,  113  Fed.  914,  51  C.  C.  A.  544.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  335,  342;  Cent.  Dig.  §§  902-907%, 
912,  913. 


§    136)  PROCEDURE   IN   COURTS   OF  LAW  391 


PROCEDURE  IN  COURTS  OF  LAW 

136.  The  practice,  pleadings,  and  forms  and  modes  of  pro- 
ceeding in  civil  causes,  other  than  equity  and  ad- 
miralty cases  in  district  courts  of  the  United  States, 
conform  as  nearly  as  practicable  to  those  existing 
in  like  causes  in  the  courts  of  record  of  the  state 
within  which  district  courts  are  held,  except  that 
the  federal  courts  are  given  power  within  prescrib- 
ed limits  to  make  rules  for  the  regulation  of  the 
details  of  their  own  practice,  provided,  however, 
the  substance  and  general  methods  of  procedure 
in  the  state  courts  are  observed. 

The  subject  of  procedure  is  regulated  by  chapter  18  of 
title  13  of  the  Revised  Statutes.7  In  so  far  as  this  applies 
to  the  common-law  courts,  the  most  important  provision  is 
section  5  of  the  act  of  June  1,  1872,  embodied  in  section 
914  of  the  Revised  Statutes,8  which  reads  as  follows : 

"The  practice,  pleadings,  and  forms  and  modes  of  pro- 
ceeding in  civil  causes,  other  than  equity  and  admiralty 
causes,  in  the  circuit  and  district  courts,  shall  conform,  as 
near  as  may  be,  to  the  practice,  pleadings,  and  forms  and 
modes  of  proceeding  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  state  within  which  such  circuit 
or  district  courts  are  held,  any  rule  of  court  to  the  contrary 
notwithstanding." 

This  act  must  also  be  construed  in  connection  with  sec- 
tion 918  of  the  Revised  Statutes,8  which  reads: 

"The  several  circuit  and  district  courts  may,  from  time 
to  time,  and  in  any  manner  not  inconsistent  with  any  law 
of  the  United  States,  or  with  any  rule  prescribed  by  the 
Supreme  Court  under  the  preceding  section,  make  rules 

TTJ.  S.  Comp.  St  1901,  p.  680. 
•  U.  S.  Comp.  St  1901,  p.  684. 
»U.  S.  Comp.  St  1901,  p.  685. 


392  PROCEDURE — ORIGINAL  JURISDICTION  ( Ch.  18 

and  orders  directing  the  returning  of  writs  and  processes, 
the  filing  of  pleadings,  the  taking  of  rules,  the  entering  and 
making  up  of  judgments  by  default,  and  other  matters  in 
vacation,  and  otherwise  regulate  their  own  practice  as  may 
be  necessary  or  convenient  for  the  advancement  of  justice 
and  the  prevention  of  delays  in  proceedings." 

Under  these  two  sections,  the  federal  courts  are  not 
bound  to  adopt  the  state  practice  in  all  its  details,  but  they 
have  a  discretion  in  conforming  only  "as  near  as  may  be," 
and  in  regulating  by  rule  details  which  would  not  change 
the  substance  and  general  methods  of  procedure  of  the 
state  practice.10 

SAME— PROCESS 

137.  The  federal  courts  adopt  the  general  forms  of  process 
of  the  state  courts  on  the  common-law  side,  sub- 
ject, however,  to  their  own  regulations.  But  the 
federal  law  requires  that  their  process  shall  be  un- 
der the  seal  of  the  court,  and  signed  by  the  clerk, 
and  that  those  issuing  from  the  Supreme  Court 
shall  bear  teste  of  the  chief  justice  or  associate  jus- 
tice next  in  precedence  when  the  chief  justiceship  is 
vacant;  and  those  issuing  from  the  district  court 
shall  bear  teste  of  the  district  judge ;  or,  when  that 
office  is  vacant,  of  the  clerk. 

Defective  process  may  be  amended,  but  no  amendment 
can  make  a  void  process  valid. 

The  federal  courts  adopt  the  general  forms  of  process  of 
the  state  courts  on  the  common-law  side,  subject,  however, 
to  their  own  regulations.  Sections  911  and  912,  however, 

10  SHEPARD  v.  ADAMS,  168  U.  S.  618,  18  Sup.  Ct.  214,  42  L. 
Ed.  602 ;  Hills  &  Co.  v.  Hoover,  220  U.  S.  329,  31  Sup.  Ct  402,  55  L. 
Ed.  485,  Ann.  Cas.  1912C,  562;  Walker  v.  Monad  Engineering  Co.. 
196  Fed.  206,  116  C.  C.  A.-  38.  See  "Courts,"'  Dec.  Dig.  (Key-No.)  § 
3^1;  Cent.  Dig.  §  S99. 


§  137)        PROCEDURE  IN  COURTS  OF  LAW  393 

are  obligatory  on  process  of  the  federal  courts.  They  re- 
quire that  the  process  shall  be  under  the  seal  of  the  court, 
and  signed  by  the  clerk,  and  that  those  issuing  from  the 
Supreme  Court  or  circuit  court  shall  bear  teste  of  the  chief 
justice  or  associate  justice  next  in  precedence  when  the 
chief  justiceship  is  vacant;  and  those  issuing  from  the 
district  court  shall  bear  teste  of  the  district  judge,  or,  when 
that  office  is  vacant,  of  the  clerk.  Hence,  under  this  provi- 
sion, no  process  can  be  used  in  the  federal  courts  which 
does  not  issue  from  the  court,  and  is  not  in  conformity 
with  the  provisions  of  these  sections.  This  excludes  the 
procedure  by  motion  common  in  some  states,  when  the  no- 
tice of  motion  is  simply  signed  by  the  attorneys  and  serv- 
ed on  the  attorneys.  A  motion,  when  authorized  by  state 
practice,  can  be  used  in  the  federal  courts;  but  in  such 
case  the  notice  of  the  motion  which  is  served  on  the  de- 
fendant must  be  signed  by  the  clerk,  and  must  be  under  the 
seal  of  the  court.  In  that  form  the  procedure  is  correct,  and 
not  at  all  uncommon.11 

Except  as  to  the  method  of  signature,  however,  the  form 
of  the  process  in  the  state  courts  on  the  common-law  side 
can  be  used  in  the  federal  courts.12 

Amendments 

Process  issuing  from  the  federal  courts  may  be  amended 
under  the  provisions  of  section  948  of  the  Revised  Stat- 
utes,18 which  enacts: 

11  Dwlght  v.  Merritt  (C.  C.)  4  Fed.  614;  Peaslee  v.  Haberstro,  Fed. 
Cas.  No.  10.884.     But  see,  contra,  Leas  &  McVitty  v.  Merriman  (C. 
C.)  132  Fed.  510;   Schofleld  v.  Palmer  (C.  C.)  134  Fed,  753.     See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  344;  Cent.  Dig.  §  917. 

12  Gillum  v.  Stewart  (C.  C.)  112  Fed.  30.    But  the  federal  courts 
may  make  their  own  regulations  as  to  return  days.     Boston  &  M. 
R.  Co.  v.   Gokey,  210  U.   S.  155,  28  Sup.  Ct  657,  52  L.  Ed.  1002: 
U.  S.  v.  United  States  Fidelity  &  Guaranty  Co.,  186  Fed.  477,  108 
C.  C.  A.  455.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  S44;  Cent.  Dig.  § 
917. 

is  U.  S.  Comp.  St.  1901,  p.  695;  Speare  v.  Stone,  193  Fed.  375,  113 
C.  C.  A.  301.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  S44;  Cent.  Dig.  § 


394  PROCEDURE — ORIGINAL  JURISDICTION  (Ch.  18 

"Any  circuit  or  district  court  may  at  any  time,  in  its  dis- 
cretion, and  upon  such  terms  as  it  may  deem  just,  allow 
an  amendment  of  any  process  returnable  to  or  before  it, 
where  the  defect  has  not  prejudiced,  and  the  amendment 
will  not  injure  the  party  against  whom  such  process  is- 
sues." 

This  only  allows,  however,  an  amendment  of  a  defective 
process.  If  the  defect  is  so  serious  as  to  make  it  absolutely 
void,  and  no  process  at  all,  then  it  cannot  be  amended;  as 
where  it  is  neither  signed  nor  sealed.14 

Service 

The  service  of  process  is  as  provided  by  the  state  stat- 
ute.15 But  in  the  case  of  foreign  corporations  this  is  sub- 
ject to  the  proviso  that  the  corporation  must  be  doing  busi- 
ness within  the  jurisdiction,  before  process  can  be  served 
on  it.  If  it  is  not  carrying  on  business  there,  service  cannot 
be  made  upon  one  of  its  officers  merely  because  he  resides 
there.16 

SAME— ATTACHMENTS 

138.  The  state  attachment  laws  in  force  on  June  1,  1872, 
and  any  later  ones  adopted  by  rule  of  court,  are 
available  in  the  federal  courts  in  common-law 
causes,  except  as  against  a  nonresident  not  person- 
ally served  in  the  district. 

917;  "Process,"  Dec.  Dig.  (Key-No.)  §§  162-16%;  Cent.  Dig.  §§  224- 
248. 

i*  D wight  v.  Merritt  (C.  C.)  4  Fed.  614.  See  "Process,"  Dec.  Dig. 
(Key-No.)  §  163;  Cent.  Dig.  §§  224-238. 

is  Amy  v.  City  of  Watertown,  130  U.  S.  301,  9  Sup.  Ct.  530,  32  L. 
Ed.  946.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  344;  Cent.  Dig.  §  917. 

ie  BARROW  S.  S.  CO.  v.  KANE,  170  U.  S.  100,  18  Sup.  Ct  526, 
42  L.  Ed.  964;  Conley  v.  MatMeson  Alkali  Works,  190  U.  S.  406,  23 
Sup.  Ct.  728,  47  L.  Ed.  1113 ;  St.  Louis  Southwestern  R.  Co.  v.  Alex- 
ander, 227  U.  S.  218,  33  Sup.  Ct  245,  57  L.  Ed.  ;  Higham  v. 

Iowa  State  Travelers'  Ass'n  (C.  C.)  193  Fed.  845.  See  "Courts" 
Dec.  Dig.  (Key-No.)  §  844;  Cent.  Dig.  §  917. 


§    138)  PROCEDURE   IN   COURTS  OF  LAW  395 

Section  915  of  the  Revised  Statutes  1T  provides  as  fol- 
lows: 

"In  common-law  causes  in  the  circuit  and  district  courts 
the  plaintiffs  shall  be  entitled  to  similar  remedies,  by  at- 
tachment or  other  process,  against  the  property  of  the  de- 
fendant, which  are  now  provided  by  the  laws  of  the  state  in 
which  such  court  is  held  for  the  courts  thereof;  and  such 
circuit  or  district  courts  may,  from  time  to  time,  by  general 
rules,  adopt  such  state  laws  as  may  be  in  force  in  the  states 
where  they  are  held  in  relation  to  attachments  and  other 
process:  Provided,  that  similar  preliminary  affidavits  or 
proofs,  and  similar  security,  as  required  by  such  state 
laws,  shall  be  first  furnished  by  the  party  seeking  such  at- 
tachment or  other  remedy." 

But,  as  seen  in  a  previous  connection,  the  federal  courts 
cannot  issue  an  attachment  against  a  nonresident  when  he 
is  not  found  in  the  district,  or  when  there  is  no  other  ground 
of  jurisdiction.18 

It  is  clear  from  the  language  of  the  above  section  that 
this  adopted  simply  the  attachment  laws  which  were  in 
force  on  June  1,  1872,  and  that  subsequent  attachment  laws 
of  the  states  are  not  adopted  unless  the  court  specially  pro- 
vides therefor  by  general  rule;  but  under  this  statute  and 
section  914,  the  general  state  practice  in  relation  to  attach- 
ments is  adopted.19 

IT  U.  S.  Comp.  St.  1901,  p.  684. 

is  In  re  DES  MOINES  &  M.  RY.  CO.,  103  U.  S.  794,  26  L.  Ed. 
461 ;  Big  Vein  Coal  Co.  v.  Read,  229  U.  S.  31,  33  Sup.  Ct.  694,  57  L. 

Ed.  ;  U.  S.  v.  Brooke  (D.  C.)  184  Fed.  341 ;  ante,  p.  275.  See 

"Courts,"  Dec.  Dig.  (Key-No.)  §  270;  Cent.  Dig.  §  810. 

i»  Logan  v.  Goodwin,  104  Fed.  490,  43  C.  C.  A.  658;  Common- 
wealth Trust  Co.  v.  Frick  (C.  C.)  120  Fed.  688.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  346;  Cent.  Dig.  §  918. 


396  PROCEDURE — ORIGINAL  JURISDICTION  (Ch.  18 

SAME— APPEARANCES 

139.  As  to  the  effect  of  the  defendant's  appearance,  the  fed- 
eral courts  are  not  bound  to  follow  state  statutes 
prescribing  a  certain  result  as  flowing  from  the 
entry  of  an  appearance ;  as,  for  instance,  state  stat- 
utes which  provide  that  a  special  appearance  shall 
have  the  effect  of  a  general  appearance. 

As  the  practice  only  conforms  "as  near  as  may  be,"  the 
federal  courts  have  a  discretion  to  disregard  this  provision 
of  the  state  court.20 


SAME— PARTIES  TO  COMMON-LAW  ACTIONS 

140.  The  rules  as  to  parties  to  actions  are  substantially 
similar  to  those  prevailing  in  the  state  courts  of 
the  locality,  subject  to  certain  exceptions  incident 
to  the  nature  of  the  federal  courts  and  the  charac- 
ter of  their  jurisdiction. 

State  statutes  allowing  parties  in  real  interest  to  sue  in 
their  own  names  are  adopted  by  the  federal  courts,  subject, 
always,  to  the  proviso  that,  if  the  real  interest  which  they 
attempt  to  assert  is  an  equitable  interest,  they  cannot  sue 
in  the  federal  courts  in  their  own  names ;  for,  as  seen  above, 
equitable  titles  cannot  be  asserted  in  the  federal  courts  on 
the  law  side.21 


20  Mexican  Cent.  R.  Co.  v.  Pinkney,  149  TL  S.  194,  13   Sup.  Ct. 
859,  37  L.  Ed.  699.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  341,  345; 
Cent.  Dig.  §§  899,  917. 

21  New  York  Continental  Jewall  Filtration  Co.  v.  Sullivan  (C.  C.) 
Ill  Fed.  179 ;  Mead  v.  Chesbrough  Bldg.  Co.,  151  Fed.  998,  81  C.  C. 
A.  184;  Beatty  v.  Wilson  (C.  C.)  161  Fed.  453.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  343;  Cent.  Dig.  §§  915-920. 


§    141)  PROCEDURE   IN   COURTS   OF  LAW  397 

But  an  assignee  can  sue  in  his  own  name  where  the  state 
statute  allows  it  and  vests  him  with  the  legal  title.22 

Where  a  state  statute  allows  a  wife  to  sue  in  her  own 
name  for  damages  to  person  or  character,  the  federal  stat- 
ute allows  her  also.28 

Where  there  is  an  improper  joinder  of  parties,  and  the 
state  statute  allows  the  improper  parties  to  be  stricken  out, 
the  same  practice  will  be  followed  by  the  federal  courts.2* 


SAME— PLEADING 

141.  The  pleading  in  the  federal  courts  is  substantially  sim- 
ilar to  that  in  the  state  courts  of  the  locality. 
Amendments  are  liberally  allowed  in  case  of  formal  de- 
fects in  a  way  to  enable  the  courts  to  administer 
justice  and  render  decisions  according  to  the  very 
right  of  the  cause. 

The  forms  of  action  in  the  state  courts  on  the  common- 
law  side  are  adopted  by  the  federal  courts.  In  fact  this 
was  the  prime  object  of  the  passage  of  the  act  of  June  1, 
1872,  so  as  to  save  the  bar  the  necessity  of  having  to  learn 
and  practice  two  entirely  different  systems  of  pleading.25 

Hence  the  state  rule  as  to  the  effect  of  a  general  issue, 

22  Albany  &  R.  Iron  &  Steel  Co.  v.  Lundberg,  121  U.  S.  451,  7  Sup. 
Ct.  958,  30  L.  Ed.  982 ;  Nederland  Life  Ins.  Co.  v.  Hall,  84  Fed.  278, 
27  C.  C.  A.  390.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  343;  Cent.  Dig. 

'§§  915-920. 

23  Morning  Journal  Ass'n  v.   Smith,   56  Fed.   141,  4  C.   C.  A.  8. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  3^3;  Cent.  Dig.  §§  915-920. 

2  *  Perry  v.  Mechanics'  Mut.  Insurance  Co.  (C.  C.)  11  Fed.  478; 
Whitaker  v.  Pope,  Fed.  Cas.  No.  17,528.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  3^3;  Cent.  Dig.  §§  915-920. 

25  INDIANAPOLIS  &  ST.  L.  R.  CO.  v.  HORST,  93  U.  S.  291,  23 
L.  Ed.  898;  Knight  v.  Illinois  Cent.  R.  Co.,  180  Fed.  368,  103  C.  C. 
A.  514.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  342;  Cent.  Dig.  §§  912, 
913. 


398  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

and  what  is  provable  under  it,  is  adopted  by  the  federal 
courts.26 

Amendments 

The  federal  courts  are  liberal  in  the  allowance  of  amend- 
ments. Section  954  of  the  Revised  Statutes27  provides: 

"No  summons,  writ,  declaration,  return,  process,  judg- 
ment, or  other  proceedings  in  civil  causes,  in  any  court  of 
the  United  States,  shall  be"  abated,  arrested,  quashed,  or 
reversed  for  any  defect  or  want  of  form;  but  such  court 
shall  proceed  and  give  judgment  according  as  the  right  of 
the  cause  and  matter  in  law  shall  appear  to  it,  without  re- 
garding any  such  defect,  or  want  of  form,  except  those 
which,  in  cases  of  demurrer,  the  party  demurring  specially 
sets  down,  together  with  his  demurrer,  as  the  cause  there- 
of; and  such  court  shall  amend  every  such  defect  and  want 
of  form,  other  than  those  which  the  party  demurring  so  ex- 
presses; and  may  at  any  time  permit  either  of  the  parties 
to  amend  any  defect  in  the  process  or  pleadings,  upon  such 
conditions  as  it  shall,  in  its  discretion  and  by  its  rules,  pre- 
scribe." 

It  not  only  acts  under  this  section  in  liberally  allowing 
amendments,  but  it  also  adopts  the  practice  of  the  state 
courts  in  the  allowance  of  amendments  in  so  far  as  that 
practice  does  not  conflict  with  the  rights  given  by  the 
above  section.  For  instance,  where  the  state  practice  al- 
lows it,  a  new  count  can  be  added  to  the  declaration.28 

So,  too,  where  a  foreign  administrator  sues  in  the  federal 
courts  without  having  had  a  local  qualification,  he  can  qual- 

2e  Roberts  v.  Lewis,  144  U.  S.  653,  12  Sup.  Ct.  781,  36  L.  Ed.  579; 
DUSHANE  v.  BENEDICT,  120  U.  S.  630,  7  Sup.  Ct.  696,  30  L.  Ed. 
810.  If  a  general  denial  in  the  state  practice  puts  in  issue  every 
material  fact,  it  would  put  in  issue  the  question  of  jurisdiction  in 
the  federal  court.  Lindsay-Bitton  Live  Stock  Co.  v.  Justice,  191 
Fed.  163,  111  C.  C.  A.  525.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  347; 
Cent.  Dig.  §  921. 

27  U.  S.  Comp.  St.  1901,  p.  696. 

28  WEST  v.  SMITH,  101  TJ.  S.  263,  25  L.  Ed.  809.     See  "Courts," 
Dec.  Dig.  (Key-No.)  §  347;  Cent.  Dig.  §  921. 


§    142)  PROCEDURE   IN   COURTS   OF   LAW  399 

ify  after  the  institution  of  the  suit,  and  then  amend,  setting 
up  his  local  qualification.29 

A  widow  who  sues  as  administrator  can  amend  by  bring- 
ing the  suit  in  her  own  right,  and  vice  versa.80 

An  amendment  of  the  declaration  may  be  made  during 
the  trial  in  order  to  avoid  a  variance.81 

Under  section  954  an  amendment  can  be  made  in  the  fed- 
eral courts  even  after  judgment,  and  in  as  vital  a  matter 
as  the  allegation  of  citizenship.82 

In  fact,  whatever  the  state  practice  may  be  as  to  amend- 
ments, it  cannot  restrict  the  right  of  the  federal  courts  un- 
der section  954,  but  that  section  governs  in  case  of  conflict 
or  difference  of  practice.38 


SAME— CONTINUANCES 

142.  In  the  matter  of  continuances  the  federal  courts  fol- 
low their  own  rules,  and  are  not  affected  by  the 
state  law  or  practice,  as  continuances  are  not  con- 
sidered to  come  within  the  purview  of  section 
914." 


2 » Hodges  v.  Kimball,  91  Fed.  845,  34  C.  C.  A.  103;  Dodge  v. 
North  Hudson  (C.  C.)  188  Fed.  491.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  347;  Cent.  Dig.  §  921. 

so  Van  Doren  v.  Railroad  Co.,  93  Fed.  260,  35  C.  C.  A.  282;  Mis- 
souri, K.  &  T.  R.  Co.  v.  Wulf,  226  U.  S.  570,  33  Sup.  Ct  135,  57  L. 
Ed.  .  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  347;  Cent.  Dig.  §  921. 

siBamberger  v.  Terry,  103  U.  S.  40,  26  L.  Ed.  317;  Snare  & 
Triest  Co.  v.  Friedman,  169  Fed.  1,  94  C.  C.  A.  369,  40  L.  R.  A.  (N. 
S.)  367.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  347;  Cent.  Dig.  §  921. 

32  Mexican  Cent.  Ry.  Co.  v.  Duthie,  189  U.  S.  76,  23  Sup.  Ct  610, 
47  L.  Ed.  715.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  347;  Cent.  Dig. 
§  92 1. 

33  Lange  v.  Union  Pac.  R.  Co.,  126  Fed.  338,  62  C.  C.  A.  48 ;  Reardon 
v.  Balaklala  Consol.  Copper  Co.  (C.  C.)  193  Fed.  189.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  259;  Cent.  Dig.  §§  795,  796. 

34  Texas  &  P.  R.  Co.  v.  Nelson,  50  Fed.  814,  1  C.  C.  A.  688.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §  932. 


400  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

The  granting-  or  refusing  of  a  continuance  in  a  federal 
court  is  a  matter  of  discretion  with  the  judge.38 


SAME— TRIAL 

143.  The  making  up  of  the  jury  in  the  federal  courts  is 
largely  under  the  court's  control,  and  it  may  adopt 
the  state  practice  or  not,  as  it  thinks  fit,  so  far  as 
it  does  not  conflict  with  the  federal  statutes.36 
The  federal  courts  have  their  own  procedure  in  reference 
to  the  question  of  trying  cases  without  a  jury. 
The  trial  may  be  without  a  jury  when  the  jury  is 
waived  in  writing. 

Section  649  of  the  Revised  Statutes  8T  provides : 
"Issues  of  fact  in  civil  cases  in  any  circuit  court  may  be 
tried  and  determined  by  the  court,  without  the  intervention 
of  a  jury,  whenever  the  parties,  or  their  attorneys  of  rec- 
ord, file  with  the  clerk  a  stipulation  in  writing  waiving  a 
jury.  The  finding  of  the  court  upon  the  facts,  which  may 
be  either  general  or  special,  shall  have  the  same  effect  as 
the  verdict  of  a  jury." 

And  section  700  of  the  Revised  Statutes  38  provides : 
"When  an  issue  of  fact  in  any  civil  cause  in  a  circuit 
court  is  tried  and  determined  by  the  court  without  the  in- 
tervention of  a  jury,  according  to  section  six  hundred  and 
forty-nine,  the  rulings  of  the  court  in  the  progress  of  the 
trial  of  the  cause,  if  excepted  to  at  the  time,  and  duly  pre- 
sented by  a  bill  of  exceptions,  may  be  reviewed  by  the  Su- 
ss Fidelity  &  Deposit  Co.  v.  L.  Buck!  &  Son  Lumber  Co.,  189  U. 
S.  135,  23  Sup.  Ct.  582,  4T  L.  Ed.  744.    See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  352;  Cent.  Dig.  §  932. 

36  Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208; 
Judicial  Code,  §  275-288.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  352; 
Cent.  Dig.  §  929. 

37  U.  S.  Comp.  St.  1901,  p.  525. 
ss  u.  S.  Comp.  St  1901,  p.  570. 


§    143)  PBOCEDUKE   IN   COURTS   OF   LAW  401 

preme  Court  upon  a  writ  of  error  or  upon  appeal ;  and 
when  the  finding  is  special  the  review  may  extend  to  the 
determination  of  the  sufficiency  of  the  facts  found  to  sup- 
port the  judgment." 

As  these  statutes  referred  in  terms  to  the  circuit  court 
only,  it  was  held  in  cases  arising  before  the  Judicial  Code 
that  there  was  no  authority  for  waiving  a  jury  in  the  dis- 
trict court,  so  that  there  was  no  review  of  matters  of  fact 
in  that  court.39 

But  section  291  of  the  Judicial  Code  provides  that  "wher- 
ever, in  any  law  not  embraced  within  this  act,  any  refer- 
ence is  made  to,  or  any  power  or  duty  is  conferred  or  im- 
posed upon,  the  circuit  courts,  sudi  reference  shall,  upon 
the  taking  effect  of  this  act,  be  deemed  and  held  to  refer 
to,  and  to  confer  such  power  and  impose  such  duty  upon, 
the  district  courts." 

The  provisions  of  these  statutes  must  be  rigidly  followed. 
It  is  not  sufficient  for  the  record  simply  to  state  that 
a  jury  was  waived,  but  it  must  appear  either  by  recitals  in 
the  record  or  by  the  filing  of  the  paper  that  there  was  filed 
a  stipulation  in  writing  waiving  a  jury.  Before  the  act  was 
passed  which  is  now  embodied  in  section  649,  the  court  had 
decided  that,  where  the  parties  submitted  the  whole  case 
to  the  judge,  he  acted  not  as  judge,  but  practically  as  ar- 
bitrator, and  there  could  be  no  review  of  his  decision.40 

On  similar  reasoning,  if  the  waiver  is  not  in  accordance 
with  the  statute,  the  same  principle  would  apply,  and  par- 
ties who  are  not  particular  about  this  may  find,  when  they 
try  to  reach  the  appellate  court,  that  they  have  unconscious- 
ly submitted  their  case  to  arbitration,  and  that  the  court 
of  appeals  will  not  review  the  decision  of  the  judge  sitting 
without  a  jury,  except  as  to  questions  of  law  not  involved 


8»  Campbell  v.  U.  S.,  224  U.  S.  99,  32  Sup.  Ct.  398,  56  L.  Ed.  684. 
See  "Courts,"  Dec.  Dig.  (Key-ffo.)  §  352;  Cent.  Dig.  §  930. 

*o  Campbell  v.  Boyreau,  21  How.  223,  16  L.  Ed.  96.     See  "Courts," 
Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §§  929,  930. 
HUGHES  FED.PB.(2o  ED.) — 26 


402  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

in  the  finding  of  facts,  unless  the  record  clearly  shows  that 
there  was  a  stipulation  in  writing  waiving  a  jury.41 

And  even  where  there  is  such  a  stipulation  the  appellate 
court  can  only  consider  such  errors  as  are  excepted  to  at 
the  time.42 

In  respect  to  this  the  federal  courts  are  not  affected  by 
state  statutes.  As  the  trial  must  be  by  jury  unless  waived, 
a  state  statute  allowing  a  reference  of  a  common-law  case 
to  auditors  or  referees  will  not  be  followed  by  the  federal 
courts.48 

SAME— SAME— EVIDENCE 

144.  The  evidence  in  the  federal  courts  is  taken  in  a  man- 
ner similar  to  that  prevailing  in  the  state  courts, 
except  that  the  federal  courts  have  certain  rules 
of  their  own  relating  to  the  taking  of  depositions. 

In  common-law  cases  it  is  provided  by  section  861  of  the 
Revised  Statutes  44  that  the  mode  of  proof  in  the  trial  of 
an  action  at  common  law  shall  be  by  oral  testimony  and 
examination  of  witnesses  in  open  court  except  as  herein- 
after provided.  The  cases  "hereinafter  provided"  are  those 
sections  providing  for  the  taking  of  depositions  de  bene 
esse,  or  the  issuing  of  commissions. 

An  important  statute  in  reference  to  the  taking  of  depo- 
sitions is  the  act  of  March  9,  1892.45  It  provides : 

41  BOND  v.  DUSTTN,  112  U.  S.  604,  5  Sup.  Ct.  296,  28  L.  Ed.  835; 
Campbell  v.  U.  S.,  224  U.  S.  99,  32  Sup.  Ct.  398,  56  L.  Ed.  684.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  852;  Cent.  Dig.  §§  929,  930. 

42McCREA  v.  PARSONS,  112  Fed.  917,  50  C.  C.  A.  612;  Wilson 
v.  Merchants'  Loan  &  Trust  Co.,  183  U.  S.  121,  22  Sup.  Ct.  55,  46  L. 
Ed.  113.  See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  850. 

43  Sulzer  v.  Watson  (C.  C.)  39  Fed.  414;  Erkel  v.  U.  S.,  169  Fed. 
623,  95  C.  C.  A.  151.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  352;  Cent. 
Dig.  §§  929,  930. 

44  U.  S.  Coinp.  St.  1901,  p.  661. 

45  U.  S.  Comp.  St.  1901,  p.  664. 


§  144)         PROCEDURE  IN  COURTS  OF  LAW  403 

"That  in  addition  to  the  mode  of  taking  the  depositions 
of  witnesses  in  causes  pending  at  law  or  equity  in  the  dis- 
trict and  circuit  courts  of  the  United  States,  it  shall  be  law- 
ful to  take  the  depositions  or  testimony  of  witnesses  in  the 
mode  prescribed  by  the  laws  of  the  state  in  which  the 
courts  are  held."  . 

There  is  some  conflict  of  decision  as  to  the  scope  of  this 
act.  In  the  New  York  circuit  it  has  been  held  that  this  act 
authorizes  the  adoption  of  state  statutes  allowing  the  ex- 
amination of  the  parties  to  the  cause  before  the  actual 
trial.46 

On  the  other  hand,  the  preponderance  of  authority,  and 
the  better  authority,  is  that  this  statute  was  simply  in- 
tended to  cover  the  method  of  taking  the  deposition,  and 
not  to  give  any  right  to  compel  taking  depositions  under  a 
state  statute,  which  did  not  exist  before,  so  that  state  stat- 
utes permitting  the  examination  of  parties  before  the  trial 
are  not  applicable  to  the  federal  courts.  These  decisions 
certainly  seem  to  accord  best  with  the  language  of  the 
act.47  And  the  recent  decision  of  the  Supreme  Court  in 
Hanks  Dental  Ass'n  v.  International  Tooth  Crown  Co.48 
settles  this  as  the  law. 

Where,  however,  a  state  statute  authorizes  a  surgical  ex- 
amination, the  federal  courts  will  act  under  it;  but  the 
right  to  do  this  is  based  upon  section  721  (U.  S.  Comp.  St. 
1901,  p.  581),  adopting  the  laws  of  the  states  as  rules  of 


<«  International  Tooth-Crown  Co.  v.  Hanks'  Dental  Ass'n  (C.  C.) 
101  Fed.  306,  overruled  Hanks  Dental  Ass'n  v.  International  Tooth- 
Crown  Co.,  194  U.  S.  303,  24  Sup.  Ct.  700,  48  L.  Ed.  989.  Compare 
Cheatham  Electric  Switching  Devise  Co.  v.  Transit  Development  Co. 
(C.  C.)  190  Fed.  202;  Wilson  v.  New  England  Nav.  Co.  (D.  C.)  197 
Fed.  88.  Bee  "Courts,"  Dec.  Dig.  (Key-No.)  §§  351,  371;  Cent.  Dig. 
§  924. 

<7  Despeaux  v.  Pennsylvania  R.  Co.  (C.  C.)  81  Fed.  897;  National 
Cash  Register  Co.  v.  Leland  (C.  C.)  77  Fed.  242.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  350,  351;  Cent.  Dig.  §§  923,  924. 

"  194  U.  S.  303,  24  Sup.  Ct  700,  48  L.  Ed.  989 ;  ante,  p.  10.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  350,  351;  Cent.  Dig.  §§  923,  92k. 


404  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

decision  in  trials  at  common  law,  and  is  not  based  upon  the 
theory  that  such  a  statute  is  a  statute  relating  to  evi- 
dence.49 


SAME— SAME— INSTRUCTIONS   TO  JURY 

145.  In  instructing  a  jury  the  federal  courts  are  not  bound 
by  the  state  practice,  but  follow  their  own  rules, 
regardless  of  state  legislation  to  the  contrary. 
A  federal  judge  has  full  power  to  charge  a  jury. 
A  federal  judge  may  direct  a  verdict  where  the  facts  are 
undisputed,  or  the  preponderance  of  evidence  is 
so  strong  that  reasonable  men  should  not  differ  as 
to  the  deductions  to  be  drawn  from  it;  and  this 
may  be  done  at  the  close  of  the  plaintiff's  evidence 
or  at  the  close  of  the  whole  evidence,  and  in  ex- 
ceptional cases  at  the  close  of  the  opening  state- 
ment. 

In  their  manner  of  instructing  or  charging  the  jury  the 
federal  courts  have  blazed  out  their  own  path,  and  are  not 
governed  by  the  state  practice  or  statutes.  Even  a  require- 
ment of  a  state  Constitution  forbidding  any  charges  to  the 
jury  as  to  matters  of  fact  does  not  affect  the  federal 
courts ; 50  nor  does  any  other  state  practice  or  statute  on 
the  subject.51 

Perhaps  the  most  radical  difference  between  the  practice 
of  the  state  and  federal  courts  is  along  this  line.  In  many 

4»  Camden  &  S.  R.  Co.  v.  Stetson,  177  U.  S.  172,  20  Sup.  Ct  G17, 
44  L.  Ed.  721.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  351;  Cent.  Dig.  § 
924. 

BO  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Vickers,  122  U.  S.  360,  7  Sup. 
Ct.  1216,  30  L.  Ed.  1161.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  352; 
Cent.  Dig.  §  927. 

01  CITY  OF  LINCOLN  v.  POWER,  151  LT.  S.  436,  14  Sup.  Ct.  3S7, 
38  L.  Ed.  224 ;  Knight  v.  Illinois  Cent.  R.  Co.,  180  Fed.  368,  103  C.  C. 
A.  514;  Steers  v.  U.  S.,  192  Fed.  1,  112  C.  C.  A.  423.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §  937. 


§    145)  PROCEDURE   IN   COURTS   OF    LAW  405 

state  courts  (especially  in  Virginia)  the  powers  of  the 
judge  are  restricted,  so  that  he  becomes  hardly  more  than 
the  moderator  at  a  meeting.  He  cannot  express  the  slight- 
est opinion  on  questions  of  evidence,  and  in  many  states 
cannot  give  any  instruction  or  charge  to  the  jury  unless 
it  be  reduced  to  writing.  This  is  not  the  practice  of  the 
federal  courts,  and  section  914,  adopting  the  state  practice, 
does  not  apply  to  this  question.  The  judges  in  the  federal 
courts  have  the  right  to  comment  on  the  evidence,  and  to 
discuss  even  its  weight  and  credibility,  provided  only  they 
let  the  jury  understand  that  the  final  decision  on  all  ques- 
tions of  fact  is  with  them.52 

Motion  to  Direct  Verdict 

It  is  the  constant  practice  of  the  federal  courts  to  direct  a 
verdict.  The  circumstances  under  which  they  can  direct  it 
are  carefully  guarded,  and  they  cannot  do  so  when  the  evi- 
dence is  conflicting.53 

But  where  the  facts  are  undisputed,  or  the  preponderance 
is  so  great  that  the  evidence  practically  becomes  conclu- 
sive, and  no  reasonable  men  could  differ  as  to  the  deduc- 
tions to  be  drawn  from  it,  then  they  can  direct  a  verdict.54 

In  the  Virginia  practice,  which  probably  is  similar  to 
that  of  many  states,  such  a  thing  as  directing  a  verdict  is 
unheard  of.  The  only  method  of  taking  advantage  of  the 
failure  of  the  plaintiff  to  prove  his  case  is  by  demurrer  to 
evidence,  with  its  attendant  risks.  The  practice  of  the  fed- 
eral courts  attains  the  same  object,  and  still  leaves  the  par- 
ty who  requests  a  direction  of  a  verdict  free  to  go  before 
the  jury  in  case  the  court  should  refuse.  If  the  evidence  is 

62  CITY  OF  LINCOLN  v.  POWER,  151  U.  S.  436,  14  Sup.  Ct.  387, 
38  L.  Ed.  224;  Freese  v.  Kemplay,  118  Fed.  428,  55  C.  C.  A.  2GS; 
Mead  v.  Darling,  159  Fed.  684,  86  C.  C.  A.  552.  See  "Courts,"  Dec. 
Din.  (Key-No.)  §  352;  Cent.  Dig.  §  927. 

53  White  v.  Van  Horn,  150  U.  S.  3,  15  Sup.  Ct.  1027,  40  L.  Ed.  55. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §  927. 

5*  Southern  Pac.  Co.  v.  Pool,  160  U.  S.  438,  16  Sup.  Ct.  338,  40  L. 
Ed.  485;  Louisville  &  N.  R.  Co.  v.  Roberts,  177  Fed.  922.  101  C.  C. 
A.  202.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  532;  Cent.  Dig.  §  927. 


406  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

such  that  the  court  would  be  bound  to  set  aside  a  verdict  in 
case  one  was  rendered,  then  a  federal  court  will  save  the 
litigants  and  itself  the  delays  of  a  long  trial,  and  will  di- 
rect the  jury  to  bring  in  a  verdict.55 

Time  for  Motion 

Motions  to  direct  a  verdict  in  the  federal  courts  may  be 
made  at  any  one  of  several  stages.  If  the  opening  statement 
of  counsel  for  the  plaintiff  states  the  evidence  on  which  he 
expects  to  rely  and  in  so  doing  shows  that  on  such  evidence 
he  cannot  recover,  the  court  may,  at  the  close  of  his  state- 
ment, without  going  into  any  evidence  at  all,  direct  the  jury 
to  bring  in  a  verdict ;  for  it  would  be  an  idle  ceremony  and 
waste  of  time  to  allow  a  trial  to  proceed  when  it  is  a  fore- 
gone conclusion  that  any  verdict  would  have  to  be  set 
aside.56 

If,  however,  the  defendant  does  not  care  to  make  this 
motion  at  that  time,  or  if  he  makes  it  then,  and  fails,  he 
can  renew  the  motion  at  the  end  of  the  plaintiff's  evidence. 
If  the  motion  is  sustained,  that  ends  the  case  in  his  favor; 
if  the  motion  is  overruled,  he  has  the  choice  of  two  meth- 
ods :  He  may  take  an  exception  to  the  action  of  the  court 
in  overruling  his  motion,  and  submit  no  evidence,  and  go 
to  the  appellate  court  on  the  theory  that  the  plaintiff's  own 
evidence  has  failed  to  make  out  a  case,  and  seek  a  reversal 
on  that  ground.  If  he  considers  this  step  too  dangerous, 
he  can  then  put  on  his  own  evidence,  but  when  he  does  so 
he  waives  the  benefit  of  any  exception  that  he  may  have 
taken  to  the  action  of  the  court  in  refusing  to  direct  a  ver- 
dict at  the  end  of  the  plaintiff's  evidence,  for  it  may  well 
be  that,  though  the  plaintiff's  evidence  was  not  sufficient 
to  sustain  a  verdict,  the  defendant's  may  have  supplement- 


55  Sansom  v.  Railway  Co.,  Ill  Fed.  887,  50  C.  C.  A.  53.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §  927. 

seoscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §  927;  "Trial,"  Dec. 
Dig.  (Key-No.)  §  113;  Cent.  Dig.  §  397. 


§    146)  PROCEDURE   IN   COURTS   OF  LAW  407 

ed  it;  and  hence  putting  on  evidence  after  the  overruling 
of  a  motion  to  direct  at  the  close  of  the  plaintiff's  evidence 
is  held  to  be  a  waiver  of  such  an  exception.  He  can,  how- 
ever, give  up  the  benefit  of  his  assignment  of  error  for  fail- 
ure to  instruct  at  the  close  of  the  plaintiff's  evidence  and 
still  renew  his  motion  to  the  court  to  direct  a  verdict  at 
the  close  of  all  the  evidence  in  the  case;  and,  in  case  this 
motion  is  overruled,  he  can  take  an  exception  to  the  action 
of  the  court  and  embody  all  the  evidence  in  the  bill  of  ex- 
ceptions, on  the  theory  that  neither  the  plaintiff's  nor  de- 
fendant's evidence,  nor  both  combined,  are  sufficient  to  sus- 
tain a  verdict.  The  right  to  take  these  different  steps  is 
fully  established  by  the  authorities.51 


SAME— SAME— BILL  OF  EXCEPTIONS 

146.  The  bill  of  exceptions  is  the  method  of  incorporating 
into  the  record  errors  of  law  not  otherwise  appear- 
ing therein. 

In  the  form  and  other  procedure  relating  to  such  bills  the 
federal  courts  have  their  own  rules,  and  do  not  re- 
gard the  state  practice. 

The  bill  of  exceptions  must  be  formally  written  out  and 
signed  by  the  judge,  but  it  need  not  be  under  seal. 

The  exception  must  be  noted  at  the  time  the  ruling  ob- 
jected to  is  made,  and  the  bill  of  exceptions  per- 
fected during  the  term. 

The  exception  must  be  specific,  and  taken  as  to  the  pre- 
cise point  objected  to,  and  a  separate  exception 
must  be  taken  to  each  objectionable  ruling. 

»T  Robertson  v.  Perkins,  129  U.  S.  233,  9  Sup.  Ct  279,  32  L.  Ed. 
086;  UNION  PAC.  R.  CO.  v.  CALLAGHAN,  161  U.  S.  91,  16  Sup. 
Ct.  493,  40  L.  Ed.  628 ;  Sigafus  v.  Porter,  179  U.  S.  116,  21  Sup.  Ct. 
34,  45  L.  Ed.  113;  McCREA  v.  PARSONS,  112  Fed.  917,  50  C.  C.  A. 
612.  See  "Trial,"  Dec.  Dig.  (Key-No.)  §§  167,  172,  173;  Cent.  Dig.  §§ 
376-597. 


408  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

Section  953  of  the  Revised  Statutes  as  amended  in  1900, 
allowing  bills  of  exception,  has  been  set  out  in  a  previous 
connection.58 

In  order  to  constitute  bills  of  exception,  they  must  be 
formally  written  out  and  signed.  Mere  minutes  or  mem- 
oranda of  notations  of  exceptions  are  not  bills  of  exceptions 
in  the  sense  of  this  statute.59 

The  bill  must  be  signed  by  the  judge  who  presided  at  the 
trial,  but  it  need  not  be  under  seal.60 

The  last  amendment  allows  another  judge  besides  the 
judge  who  presided  to  sign  the  bill  of  exceptions  in  case  of 
the  sickness  or  disability  of  the  judge  who  actually  did 
preside.  This,  however,  only  applies  to  cases  of  actual  dis- 
ability, not  to  cases  of  mere  absence  from  the  district.61 

In  order  to  avail  of  a  bill  of  exceptions  to  errors  in  rul- 
ing, the  exception  must  be  noted  at  the  time  the  ruling  is 
made,  so  as  to  give  the  judge  the  opportunity  of  correcting 
it  if  possible.  If  noted  at  that  time,  it  may  be  actually  writ- 
ten out  and  signed  any  time  during  the  term.62 

If  an  agreement  is  made  to  that  effect  during  the  term, 
it  may  be  signed  after  the  term.63' 

88  Ante,  p.  63. 

s»  Hanna  v.  Maas,  122  U.  S.  24,  7  Sup.  Ct.  1055,  30  L.  Ed.  1117. 
See  "Exceptions,  Bill  of,"  Dec.  Dig.  (Key-No.)  §  20;  Cent.  Dig.  §§ 
21-28. 

eoGeneres  v.  Campbell,  11  Wall.  193,  20  L.  Ed.  110;  Malony  v. 
Adsit,  175  U.  S.  281,  20  Sup.  Ct.  115,  44  L.  Ed.  163;  Knight  v.  Illi- 
nois Cent.  R.  Co.,  180  Fed.  368,  103  C.  C.  A.  514.  See  "Exceptions, 
Bill  of,"  Dec.  Dig.  (Key-No.)  §  56;  Cent.  Dig.  §§  94-96. 

61  Western  Dredging  &  Improvement  Co.  v.  Heldmaier,  111  Fed. 
123,  49  C.  C.  A.  264.    As  to  the  meaning  of  "disability,"  see  Thorn- 
dyke  v.  Gunnison,  174  Fed.  137,  98  C.  C.  A.  171;  Sanborn  v.  Bay, 
194  Fed.  37,  114  C.  C.  A.  57.    See,  a}so,  Guardian  Assur.  Co.  v.  Quin- 

tana,  227  U.  S.  100,  33  Sup.  Ct.  236,  57  L.  Ed.  .     See  "Exceptions, 

Bill  of,"  Dec.  Dig.  (Key-No.)  §  32;  Cent.  Dig.  §§  37-41,  94. 

62  HL'NNICUTT  v.  PEYTON,  102  U.  S.  333,  26  L.  Ed.  113;  New 
York  &  N.  E.  R.  Co.  v.  Hyde,  56  Fed.  188,  5  C.  C.  A.  461.     See  "Ex- 
ceptions, Bill  of,"  Dec.  Dig.  (Key-No .)  §  37;  Cent.  Dig.  §§  47,  48. 

es  Waldron  v.  Waldron,  156  U.  S.  361,  15  Sup.  Ct.  383,  39  L.  Ed. 
453.  See  "Exceptions,  Bill  of,"  Dec.  Dig.  (Key-No.)  §  38;  Cent.  Dig. 
§§  49-53. 


§    146)  PROCEDURE   IN   COURTS   OF   LAW  409 

The  trial  judge  may  be  compelled  to  sign  a  bill  of  excep- 
tions by  mandamus,  provided  it  is  a  proper  bill.84 

In  the  form  and  other  procedure  relating  to  bills  of  ex- 
ception the  federal  courts  also  have  their  own  rules,  and 
do  not  regard  the  state  practice.85 

The  method  of  taking  exceptions  to  instructions  varies 
greatly  in  the  federal  and  state  courts.  Certainly  the  dif- 
ference between  the  federal  practice  and  the  practice  in 
the  state  of  Virginia  is  very  great.  Where  the  judge  charg- 
es the  jury,  an  exception  will  fall  if  it  is  taken  to  the  whole 
charge,  unless  the  entire  charge  is  wrong.  It  is  the  duty 
of  the  exceptant  to  point  out  the  special  portions  of  the 
charge  which  he  considers  objectionable.  So,  too,  as  to  in- 
structions involving  more  than  one  proposition,  he  must 
indicate  the  special  parts  of  the  instruction  to  which  he  ob- 
jects; otherwise  his  exception  will  fall.  And  he  must  take 
a  separate  exception  to  each  instruction,  or  to  each  error 
of  law  involved  in  the  instruction,  and  make  each  one  the 
subject  of  a  separate  assignment  of  error. 

These  rules  are  essential  to  the  proper  maturing  of  a 
common-law  case  in  the  federal  courts,  if  it  is  wished  to 
review  its  proceeding  in  an  appellate  court.66 

If  a  single  exception  is  taken  to  the  entire  charge,  and 
there  is  any  part  at  all  of  the  charge  right,  the  exception 
falls.87 

On  the  other  hand,  if  a  series  of  instructions  is  asked, 
and  the  court  refuses  them,  and  a  bill  of  exceptions  is  taken 

84  In  re  CHATEAUGAY  ORE  &  IRON  CO.,  128  U.  S.  544,  9  Sup. 
Ct.  150,  32  L.  Ed.  508.  See  "Exceptions,  Bill  of,"  Dec.  Dig.  (Key- 
No.)  §  53;  Cent.  Dig.  §§  80-88. 

SB  In  re  CHATEAU  GAY  ORE  &  IRON  CO.,  128  U.  S.  544,  9  Sup. 
Ct.  150,  32  L.  Ed.  508 ;  Ghost  v.  U.  S.,  168  Fed.  841,  94  C.  C.  A.  253. 
See  "Courts,"  Dec.  Dig.  (Key-no.)  §  3-56;  Cent.  Dig.  §  337. 

88THOM  v.  PITTARD,  62  Fed.  232,  10  C.  C.  A.  352;  South  Penn 
Oil  Co.  v.  Latshaw,  111  Fed.  598,  49  C.  C.  A.  478.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  356;  Cent.  Dig.  §  937. 

«T  Western  Assur.  Co.  v.  Polk,  104  Fed.  649,  44  C.  C.  A.  104.  Bee 
"Trial,"  Dec.  Dig.  (Key-No.)  §  281;  Cent.  Dig.  §  694. 


410  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

to  the  action  of  the  court  in  refusing  them,  the  exception 
falls  if  any  one  of  those  instructions  is  wrong.68 


SAME— SAME— VERDICT 

147.  The  federal  courts,  though  not  compelled  to  do  so, 
conform  in  a  general  way  to  the  practice  of  the 
state  courts  in  relation  to  the  form  of,  and  rules 
governing,  the  verdict ;  but  they  are  not  bound  by 
state  statutes  requiring  the  courts  to  submit  to  the 
jury  special  questions  of  fact,  and  requiring  the 
jury  to  make  special  findings  in  pursuance  of  such 
submissions. 

As  to  the  mere  question  of  form,  the  federal  courts  follow 
the  state  court  practice.  So,  too,  where  the  state  courts 
allow  a  single  verdict  on  several  counts,  the  federal  courts 
will  do  the  same.09 

In  many  of  the  states  there  are  laws  requiring  the  courts 
to  submit  to  the  jury  special  questions  of  fact,  and  requir- 
ing the  jury  to  make  special  findings  in  pursuance  of  such 
submissions.  The  federal  courts  have  always  refused  to  be 
bound  by  these  statutes,  considering  that  the  control  and 
handling  of  the  jury  is  not  a  matter  of  practice,  pleading, 
or  procedure  in  the  sense  of  section  914  of  the  Revised 
Statutes,  but  rather  is  a  matter  affecting  the  personal  con- 
duct and  discretion  of  the  judge,  in  which  they  will  not 
permit  state  statutes  to  bind  them.70 

ss  Illinois  Car  &  Equipment  Co.  v.  Linstroth  Wagon  Co.,  112  Fed. 
737,  50  C.  C.  A.  504.  See  "Trial,"  Dec.  Dig.  (Key-No.)  §  281;  Cent. 
Dig.  §  69>f. 

«59  BOND  v.  DUSTIN,  112  TJ.  S.  604,  5  Sup.  Ct.  296,  28  L.  Ed.  835; 
Illinois  Car  &  Equipment  Co.  v.  Wagon  Co.,  112  Fed.  737,  50  C.  C. 
A.  504;  Glenn  v.  Sumner,  132  U.  S.  152,  10  Sup.  Ct.  41,  33  L.  Ed. 
301.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  352;  Cent.  Dig.  §  927. 

70  United  States  Mut.  Ace.  Ass'n  v.  Barry,  131  U.  S.  100,  9  Sup. 
Ct.  755,  33  L.  Ed.  60;  INDIANAPOLIS  &  ST.  L.  R.  CO.  v.  HORST, 
•93  U.  S.  291,  23  L.  Ed.  898;  Toledo,  St:  L.  &  W.  R.  Co.  v.  Reardon, 


§  148)        PEOCEDURE  IN  COURTS  OF  LAW  411 

The  federal  court  has  power  to  amend  a  verdict  in  mat- 
ters of  form,  and  to  receive  a  sealed  verdict,  and  put  it  in 
proper  form,  when  the  parties  had  stipulated  that  the  jury 
could  send  in  their  verdict  sealed  during  a  recess.71 


SAME— MOTION  FOR  NEW  TRIAL 

148.  The  federal  courts  follow  the  usual  practice  of  com- 
mon-law courts  in  regard  to  new  trials,  and  do  not 
feel  bound  in  this  respect  by  state  practice. 

Section  269  of  the  Judicial  Code  provides  in  reference 
to  the  federal  courts :  "All  of  the  said  courts  shall  have 
power  to  grant  new  trials,  in  cases  where  there  has  been 
a  trial  by  jury,  for  reasons  for  which  new  trials  have  usual- 
ly been  granted  in  the  courts  of  law."  Here  the  federal 
courts  decline  to  follow  the  state  court  practice,  consider- 
ing that  the  question  as  to  granting  or  withholding  a  new 
trial  is  not  a  question  of  pleading,  practice,  or  procedure.72 

The  granting  or  refusing  of  a  new  trial  in  the  federal 
courts  is  a  matter  of  discretion,  and  cannot  be  the  subject 
of  a  bill  of  exceptions.73 

159  Fed.  3G6,  86  C.  C.  A.  360.  See  "Courts,"  Dec.  Dig.  (ffey-Yo.)  § 
352;  Cent.  Dig.  §  927. 

TI  Lincoln  Tp.  v.  Cambria  Iron  Co.,  103  U.  S.  412,  26  L.  Ed.  518: 
Koon  v.  Phoenix  Mut.  Life  Ins.  Co.,  104  U.  S.  106,  26  L.  Ed.  670. 
But  a  court  cannot  before  discharging  a  jury  ask  how  they  stand. 
Burton  v.  U.  S.,  196  U.  S.  283,  2.~>  Sup.  Ct.  243,  49  L.  Ed.  482.  See 
"Criminal  Law,"  Dec.  Dig.  (A'c//-Yo.)  §  864;  "Trial,"  Dec.  Dig.  (Key- 
Yo.)  §  840;  Cent.  Dig.  §§  795-199. 

T2  INDIANAPOLIS  &  ST.  L.  R.  CO.  v.  HORST,  93  U.  S.  291,  23 
L.  Ed.  898;  Fishburn  v.  Chicago.  M.  &  St.  P.  Ry.  Co.,  137  U.  S.  60, 
11  Sup.  Ct.  8,  34  L.  Ed.  585;  Hughey  v.  Sullivan  (C.  C.)  80  Fed.  72. 
Sec  "Courts"  Dec.  Dig.  (A'e/y-.Yo.)  §  353;  Cent.  Dig.  §  933. 

-sNewcoinb  v.  Wood,  97  U.  S.  581,  24  L.  Ed.  1085;  Murhard  Es- 
tate Co.  v.  Portland  &  S.  R.  Co.,  163  Fed.  194,  90  C.  C.  A.  64.  The 
rourt  has  power  to  put  the  successful  party  on  terras  as  a  condi- 
tion of  refusing  a  new  trial.  Darnell  v.  Krouse  (C.  C.)  134  Fed. 
509;  Daigneau  v.  Grand  Trunk  R.  Co.  (C.  C.)  153  Fed.  593.  See 


412  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

There  is  one  important  qualification  of  the  above  doctrine 
that  the  federal  courts  do  not  follow  the  state  court  prac- 
tice in  reference  to  new  trials.  Some  states  have  laws  giv- 
ing a  new  trial  as  an  absolute  matter  of  right  in  certain 
classes  of  cases,  mainly  involving  title  to  real  estate.  Where 
such  a  law  exists,  the  federal  courts  will  follow  it  in  cases 
pending  on  their  common-law  side,  and  will  grant  a  new 
trial  under  these  circumstances.74 


SAME— MOTION  IN  ARREST  OF  JUDGMENT 

149.  The  practice  of  the  federal  courts  in  respect  to  mo- 
tions in  arrest  of  judgment  corresponds  to  the 
general  common-law  doctrine. 

A  motion  in  arrest  of  judgment  under  section  954,  which 
is  the  federal  statute  of  jeofails,  will  not  lie  for  a  variance, 
nor  on  account  of  mere  matters  of  fact,  nor  for  mere  de- 
fects of  form,  but  only  for  substantial  and  irremediable  de- 
fects in  the  cause  of  action.76 


SAME— JUDGMENT 

150.  At  this  point,  as  far  as  questions  of  practice,  pleading, 
or  procedure  are  concerned,  section  914  of  the  Re- 
vised Statutes,  assimilating  the  federal  to  the  state 
practice,  no  longer  applies;  proceedings  subse- 
quent to  the  judgment  being  the  dividing  line.76 

"Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  977;  Cent.  Dig.  §§  3860- 
S865. 

74  Smale  v.  Mitchell,  143  U.  S.  99,  12  Sup.  Ct.  353,  36  L.  Ed.  90. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  353;  Cent.  Dig.  §  933. 

75  Adams  v.  Shirk,  104  Fed.  54,  43  C.  C.  A.  407;  Id.,  117  Fed.  801, 
55  C.  C.  A.  25 ;  Peden  v.  Bridge  Co.  (C.  C.)  120  Fed.  523 ;  American 
Bridge  Co.  v.   Peden,  129  Fed.  1004,  64  C.  C.  A.  580.     See  "Judg- 
ment," Dec.  Dig.  (Key-No.)  §§  259-266;  Cent.  Dig.  §§  457-499. 

7e  Detroit  United  Ry.  v,  Nichols,  165  Fed.  289,  91  C.  C.  A.  257. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  355;  Cent.  Dig.  §§  935,  936. 


§    150)  PROCEDURE   IN   COURTS   OF  LAW  413 

While  the  federal  courts  will  follow  the  state  practice  as 
to  the  mere  form  of  the  judgment,  their  control  over  it  from 
that  time  forward  is  regulated  by  the  federal  decisions  and 
statutes,  and  not  by  the  state  practice.  They  may  correct 
the  record,  after  the  term,  in  mere  clerical  errors,  but  in 
no  other  way.77 

Under  the  federal  practice  and  decisions  a  judgment  can- 
not be  set  aside  after  the  term  during  which  it  is  rendered, 
though  the  statute  of  the  state  may  provide  summary  rem- 
edies by  motion  for  the  purpose  of  regulating  judgments 
in  its  own  courts.78 

It  is  hard  to  reconcile  with  the  authorities  last  cited  the 
case  of  Travelers'  Protective  Ass'n  v.  Gilbert.79  There  the 
court  held  that  it  could  adopt  a  state  remedy  by  motion  for 
the  reopening  of  a  judgment,  and  that,  when  such  a  right 
•existed  in  the  state  practice,  it  took  away  from  the  federal 
courts  their  equitable  jurisdiction  for  the  reopening  or  set- 
ting aside  of  judgments.  Both  these  propositions  are  in- 
consistent with  the  above  case  of  Bronson  v.  Schulten,  in 
which  the  court  says  that,  independent  of  these  state  stat- 
utes allowing  the  correction  of  judgments  by  motion,  the 
power  to  regulate  judgments  after  the  term  in  which  they 
-were  rendered  was  an  equitable  power.  Nothing  is  better 
settled  in  federal  law  than  the  doctrine  that  the  ancient 
equitable  jurisdiction  possessed  by  the  federal  courts  re- 
mains with  them  despite  newer  remedies  given  by  state 
statutes.  The  states  cannot  defeat  the  federal  jurisdiction 

77  City  of  Manning  v.  Insurance  Co.,  107  Fed.  52,  46  C.  C.  A.  144; 
Home  St.  Ry.  Co.  v.  Lincoln,  162  Fed.  133,  89  C.  C.  A.  133.  But 
they  may  during  the  term.  Southern  P.  Co.  v.  Kelley,  187  Fed.  937, 
109  C.  C.  A.  659.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  354;  Cent. 
Dig.  §  934. 

7  8  BRONSON  v.  SCHULTEN,  104  TJ.  S.  410,  26  L.  Ed.  997;  City 
of  Manning  v.  Insurance  Co.,  107  Fed.  52,  46  C.  C.  A.  144 ;  Tubnian 
v.  Baltimore  &  O.  R.  Co.,  190  U.  S.  38,  23  Sup.  Ct  777,  47  L.  Ed. 
946;  Menge  v.  Warriner,  120  Fed.  816,  57  C.  C.  A.  432.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  354;  Cent.  Dig.  §  934. 

7»  111  Fed.  269,  49  C.  C.  A.  309,  55  L.  R.  A.  538.  See  "Courts," 
Dec.  Dip.  (Key-No.)  §  354;  Cent.  Dig.  §  934. 


414  PROCEDURE — ORIGINAL   JURISDICTION  (Ch.  IS- 

in  equity  on  the  ground  that  an  adequate  remedy  exists  at 
law  by  legislation  prescribing  remedies  at  law,  though 
those  remedies  were  simpler  than  the  equitable  remedy.80 

The  state  law  is  not  only  inapplicable  on  questions  as  to 
the  method  of  setting  aside  judgments  by  the  court  which 
rendered  them,  but,  a  fortiori,  it  is  still  less  applicable  to 
proceedings  for  the  review  of  a  judgment.81 

The  act  of  August  1,  1888,82  provides  as  follows: 

"That  judgments  and  decrees  rendered  in  a  circuit  or  dis- 
trict court  of  the  United  States  within  any  state,  shall  be 
liens  on  property  throughout  such  state  in  the  same  man- 
ner and  to  the  same  extent  and  under  the  same  conditions 
only  as  if  such  judgments  and  decrees  had  been  rendered 
by  a  court  of  general  jurisdiction  of  such  state:  provided, 
that  whenever  the  laws  of  any  state  require  a  judgment 
or  decree  of  a  state  court  to  be  registered,  recorded,  docket- 
ed, indexed,  or  any  other  thing  to  be  done,  in  a  particular 
manner,  or  in  a  certain  office  or  county,  or  parish  in  the 
state  of  Louisiana  before  a  lien  shall  attach,  this  act  shall 
be  applicable  therein  whenever  and  only  whenever  the  laws 
of  such  state  shall  authorize  the  judgments  and  decrees  of 
the  United  States  courts  to  be  registered,  recorded,  dock- 
eted, indexed,  or  otherwise  conformed  to  the  rules  and  re- 
quirements relating  to  the  judgments  and  decrees  of  the 
courts  of  the  state." 

Under  this  act  it  has  been  held  that,  in  case  the  state 
where  the  federal  court  sits  permits  or  requires  its  officers 
to  docket  federal  judgments,  a  judgment  of  the  federal 
court  is  not  a  lien  on  lands  in  every  county  of  the  district, 
but  is  only  a  lien  in  the  special  county  where  the  court  is 


so  Post,  p.  419 

si  West  v.  East  Coast  Cedar  Co.,  113  Fed.  737,  51  C.  C.  A.  411; 
Friedly  v.  Giddlngs  (C.  C.)  110  Fed.  438;  Giddings  v.  Freedley,  12& 
Fed.  355,  63  C.  C.  A.  85,  65  L.  R.  A.  327 ;  Knight  v.  Illinois  Cent.  R. 
Co.,  180  Fed.  368,  103  C.  C.  A.  514.  See  "Courts,"  Dec.  Dig.  (Key- 
ATo.)  §  356;  Cent.  Dig.  §  937;  "Appeal  and  Error,"  Cent.  Dig.  §  3397, 

82  U.  S.  Comp.  St.  1901,  p.  701. 


§  151)         PROCEDURE  IN  COURTS  OF  LAW  415 

sitting,  unless  it  is  also  docketed  in  the  state  clerk's  office 
of  the  other  counties.83 

A  judgment  in  the  federal  courts  is  not  a  lien  on  property 
of  the  debtor  fraudulently  conveyed  by  a  conveyance  good 
as  between  the  debtor  and  the  fraudulent  grantee,  and  dat- 
ed previous  to  the  judgment.8* 

The  authorities  bearing  on  the  lien  of  federal  judgments 
are  well  collated  in  the  footnote  to  Blair  v.  Ostrander.85 


SAME— EXECUTION 

151.  State  remedies  in  the  nature  of  execution  in  force  on 
June  1,  1872,  and  any  later  ones  adopted  by  rule  of 
court,  are  available  in  the  federal  courts  in  com- 
mon-law causes. 

In  reference  to  executions,  section  916  of  the  Revised 
Statutes86  provides: 

"The  party  recovering  a  judgment  in  any  common-law 
cause  in  any  circuit  or  district  court,  shall  be  entitled  to 
similar  remedies  upon  the  same,  by  execution  or  otherwise, 
to  reach  the  property  of  the  judgment  debtor,  as  are  now 
provided  in  like  causes  by  the  laws  of  the  state  in  which 
such  court  is  held,  or  by  any  such  laws  hereafter  enacted 
which  may  be  adopted  by  general  rules  of  such  circuit  or 
district  court;  and  such  courts  may,  from  time  to  time,  by 
general  rules,  adopt  such  state  laws  as  may  hereafter  be  in 

83  Dartmouth  Sav.  Bank  v.  Bates  (C.  C.)  44  Fed.  546.  See  "Judg- 
ment," Dec.  Dig.  (Key-\o.)  §  778;  Cent.  Dig.  §  1339. 

64  Luhrs  v.  Hancock,  181  U.  S.  567,  21  Sup.  Ct.  726,  45  L.  Ed.  1005. 
See  "Judgment,"  Dec.  Dig.  (Key-No.)  §  779;  Cent.  Dig.  §§  1340,  1342. 

8M7  L.  R.  A.  469;  Id.,  109  Iowa,  204,  80  N.  W.  330,  77  Am.  St. 
Rep.  532.  See,  also,  Great  Falls  Nat.  Bank  v.  McClure,  176  Fed. 
208,  99  C.  C.  A.  562.  A  state  statute  of  limitations  to  the  enforce- 
ment of  judgments  applies  in  the  federal  courts.  General  Electric 
Co.  v.  Kurd  (C.  C.)  171  Fed.  984.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  354;  Cent.  Dig.  §  93^. 

se  U.  S.  Comp.  St  1901,  p.  684. 


416  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  18 

force  in  such  state  in  relation  to  remedies  upon  judgments, 
as  aforesaid,  by  execution  or  otherwise." 

Under  this  statute  only  the  reme.dies  in  the  state  court 
in  the  nature  of  an  execution  which  were  in  existence  when 
that  statute  was  passed — that  is,  on  June  1,  1872 — are  avail- 
able in  the  federal  courts,  unless  the  federal  court  has  by 
rule  adopted  subsequent  state  legislation  on  the  subject.87 

Under  section  985  of  the  Revised  Statutes  88  executions 
of  the  federal  court  may  run  into  another  district  of  the 
same  state.  Under  section  987  89  the  court  has  power  to 
grant  a  stay  of  execution  for  certain  purposes.90 

Section  990  of  the  Revised  Statutes 91  provides  as  fol- 
lows: 

"No  person  shall  be  imprisoned  for  debt  in  any  state,  on 
process  issuing  from  a  court  of  the  United  States,  where, 
by  the  laws  of  such  state,  imprisonment  for  debt  has  been 
or  shall  be  abolished.  And  all  modifications,  conditions,  and 
restrictions  upon  imprisonment  for  debt,  provided  by  the 
laws  of  any  state,  shall  be  applicable  to  the  process  issuing 
from  the  courts  of  the  United  States  to  be  executed  there- 
in; and  the  same  course  of  proceedings  shall  be  adopted 
therein  as  may  be  adopted  in  the  courts  of  such  state."  92 

Under  section  993,83  any  appraisement  of  goods  taken 


87  Canal  &  C.  Streets  R.  Co.  v.  Hart,  114  TJ.  S.  654,  5  Sup.  Ct. 
1127,  29  L.  Ed.  226;  Lamaster  v.  Keeler,  123  U.  S.  376,  8  Sup.  Ct. 
197,  31  L.  Ed.  238.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  354;  Cent. 
Dig.  §  934. 

ss  U.  S.  Comp.  St.  1901,  p.  707. 

8»  TJ.  S.  Comp.  St.  1901,  p.  708. 

so  Eaton  v.  Cleveland,  St  L.  &  K.  C.  R.  Co.  (C.  C.)  41  Fed.  421; 
Sanborn  v.  Bay,  194  Fed.  37,  114  C.  C.  A.  57.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  356;  Cent.  Dig.  §  937;  "Appeal  and  Error,"  Dec. 
Dig.  (Key-No.)  §  460. 

91  U.  S.  Comp.  St.  1901,  p.  709. 

92  in  re  Bergen,  2  Hughes,  513,  Fed.  Gas.  No.  1,338 ;  Stroheim  v. 
Beimel,  77  Fed.  802,  23  C.  C.  A.  467 ;  Hayes  v.  Canada,  A.  &  P.  S. 
S.  Co.,  184  Fed.  821,  108  C.  C.  A.  175.    See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  355;  Cent.  Dig.  §  936. 

93  U.  S.  Comp.  St.  1901,  p.  709. 


§  151)         PBOCEDUEE  IN  COURTS  OF  LAW  417 

on  a  writ  of  execution  which  is  required  by  the  state  laws 
must  be  followed  by  the  federal  courts.  The  federal  courts 
also  have  power  to  set  aside  sales  under  writs  of  execution. 
Mere  inadequacy  of  price  alone  would  not  result  in  a  re- 
sale ;  but  where  the  inadequacy  is  so  gross  as  to  shock  the 
conscience,  and  especially  where  unfair  and  questionable 
methods  have  been  resorted  to,  the  court  will  not  hesitate 
to  set  the  sale  aside.94 

The  act  of  March  3,  1893,95  lays  down  important  rules  in 
reference  to  the  sale  of  property  under  orders  of  the  feder- 
al court.  It  can,  however,  be  best  discussed  in  connection 
with  the  chancery  procedure  of  the  federal  courts. 

»*  SCHROEDER  v.  YOUNG,  161  U.  S.  334,  16  Sup.  Ct  512,  40  L. 
Ed.  721.  See  "Execution,"  Dec.  Dig.  (Key-No.)  §§  250,  251;  Cent. 
Dig.  §§  697-716. 

»5  U.  S.  Comp.  St.  1901,  p.  710. 
HUGHES  FED.PB.r2o  ED.)— 27 


418  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 


CHAPTER  XIX 

PROCEDURE  IN  THE  ORDINARY   FEDERAL  COURTS  OF 

ORIGINAL  JURISDICTION   (Continued) 

COURTS  OF   EQUITY. 

152.  General  Limits  of  Equitable  Jurisdiction. 

153.  The  Equity  Procedure  in  the  Federal  Courts — How  Regulated. 

154.  Same — Pleading — General  Requisites  of  Bill. 

155.  Same — Same — Injunction  Bills. 

156.  Same — Same — Judges  who  may  issue  injunctions. 

157.  Same — Same — Injunctions  to   State  Courts. 

158.  Same — Same — Injunctions  to  State  Officials  or  Boards. 

159.  Same — The  Process. 

160.  Same— Defaults. 

161.  Same — The  Defense — Motions. 


GENERAL    LIMITS    OF   EQUITABLE   JURISDIC- 
TION 

152.  The  general  limits  of  the  equitable  jurisdiction  of  the 
federal  courts  are  those  that  prevailed  in  the  High 
Court  of  Chancery  in  England  at  the  time  of  the 
adoption  of  the  Constitution  of  the  United  States. 

The  distinction  between  law  and  equity  in  the  federal 
courts  is  made  in  the  Constitution  itself,  and  naturally  the 
jurisdiction  in  equity  which  the  framers  of  the  Constitu- 
tion had  in  mind  was  that  jurisdiction  as  it  prevailed  at  the 
time  when  the  Constitution  was  adopted.1 

It  is  practically  the  jurisdiction  of  the  High  Court  of 
Chancery  in  England  as  it  then  existed.2 

Section  267  of  the  Judicial  Code  provides  as  follows: 

"Suits  in  equity  shall  not  be  sustained  in  any  court  of 
the  United  States  in  any  case  where  a  plain,  adequate,  and 
complete  remedy  may  be  had  at  law." 

1  Vattier  v.  Hinde,  7  Pet.  252,  8  L.  Ed.  675.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  335;  Cent.  Dig.  §§  902-90T&. 

2  Ante,  p.  223. 


§    152)      GENERAL   LIMITS  OF   EQUITABLE   JURISDICTION         419 

This  section  is  declaratory  of  the  law  as  it  existed  at  the 
time  when  the  Constitution  was  adopted.  It  is  measured 
by  the  subjects  over  which  courts  of  equity  had  jurisdic- 
tion at  that  time,  and,  as  state  courts  can  neither  enlarge 
nor  diminish  the  jurisdiction  of  the  federal  courts,  it  is  not 
affected  by  the  fact  that  under  subsequent  legislation  a 
statutory  remedy  is  given  which  is  as  good  as  the  equi- 
table remedy.  Such  legislation  does  not  narrow  the  juris- 
diction of  the  federal  courts  in  equity.3 

Even  in  the  federal  courts  the  single  fact  that  there  is  a 
remedy  at  law  is  not  sufficient  to  oust  the  courts  of  their 
equitable  jurisdiction.  It  must  be  as  full,  adequate,  and 
complete  as  the  equitable  remedy.* 

But  while  the  state  statutes  cannot  enlarge  or  restrict 
the  equitable  jurisdiction  of  the  federal  courts  by  making 
a  matter  a  case  of  equity  cognizance  which  is  not  so  under 
the  practice  of  the  English  High  Court  of  Chancery,  the 
federal  courts  can  avail  of  any  new  remedy  in  the  nature 
of  an  equitable  remedy  given  for  the  enforcement  of  a 
right  which  is  equitable  in  its  nature.5 

An  equity  court  has  no  jurisdiction,  however,  to  give  a 
direct  decree  against  the  obligors  on  a  bond  given  for  re- 
lease of  property  or  other  purposes  incidental  to  a  chan- 
cery suit.  It  leaves  the  parties  to  their  remedy  at  law.6 

3  Mississippi  Mills  v.  Cohn,  150  TJ.  S.  202,  14  Sup.  Ct.  75,  37  L.  Ed. 
1052;  ante,  p.  224.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  259;  Cent. 
Dig.  §§  795,  796. 

*  Arrovvsmith  v.  Gleason,  129  U.  S.  86,  9  Sup.  Ct.  237,  32  L.  Ed. 
630;  Empire  Circuit  Co.  v.  Sullivan  (C.  C.)  169  Fed.  1009;  Rum- 
barger  v.  Yokum  (C.  C.)  174  Fed.  55.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  262;  Cent.  Dig.  §  797. 

s  Holland  v.  Challen,  110  U.  S.  15,  3  Sup.  Ct.  495,  28  L.  Ed.  52 ; 
Farr  v.  Hobe-Peters  Land  Co.,  188  Fed.  10,  110  C.  C.  A.  160.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  335;  Cent.  Dig.  §  907. 

s  Bein  v.  Heath,  12  How.  1GS,  13  L.  Ed.  939 ;  Phillips  v.  Gilbert, 
101  U.  S.  721,  25  L.  Ed.  833.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
335;  Cent.  Dig.  §  902. 


420  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 


THE  EQUITY  PROCEDURE  IN  THE  FEDERAL 
COURTS— HOW  REGULATED 

153.  The  equity  procedure  of  the  federal  courts  is  inde- 
pendent of  that  in  the  state  courts.  The  federal 
courts,  in  this  branch  of  their  jurisdiction,  have 
their  own  rules  and  practice.  These  rules  are  in 
accordance  with  the  practice  in  equity  that  pre- 
vailed at  adoption  of  the  federal  Constitution  as 
modified  by  a  code  of  rules  laid  down  by  the  Su- 
preme Court  of  the  United  States  under  authority 
of  law,  together  with  certain  rules  of  the  lower 
federal  courts  regulating  details  of  their  own  pro- 
cedure. 

The  rules  of  procedure  are  prescribed  by  the  Supreme 
Court  under  authority  of  sections  913  and  917  of  the  Re- 
vised Statutes,7  which  provide  as  follows: 

"The  forms  of  mesne  process  and  the  forms  and  modes 
of  proceeding  in  suits  of  equity  and  of  admiralty  and  mari- 
time jurisdiction  in  the  circuit  and  district  courts  shall  be 
according  to  the  principles,  rules,  and  usages  which  belong 
to  courts  of  equity  and  of  admiralty,  respectively,  except 
when  it  is  otherwise  provided  by  statute  or  by  rules  of 
court  made  in  pursuance  thereof;  but  the  same  shall  be 
subject  to  alteration  and  addition  by  the  said  courts,  re- 
spectively, and  to  regulation  by  the  Supreme  Court,  by 
rules  prescribed,  from  time  to  time,  to  any  circuit  or  dis- 
trict court,  not  inconsistent  with  the  laws  of  the  United 
States." 

"The  Supreme  Court  shall  have  power  to  prescribe,  from 
time  to  time,  and  in  any  manner  not  inconsistent  with  any 
law  of  the  United  States,  the  forms  of  writs  and  other  pro- 

T  U.  S.  Comp.  St.  1901,  pp.  683,  684. 


§   153)         EQUITY  PROCEDUEE   IN   FEDERAL  COURTS  421 

cess,  the  modes  of  framing  and  filing  proceedings  and 
pleadings,  of  taking  and  obtaining  evidence,  of  obtaining 
discovery,  of  proceeding  to  obtain  relief,  of  drawing  up, 
entering,  and  enrolling  decrees,  and  of  proceeding  before 
trustees  appointed  by  the  court,  and  generally  to  regulate 
the  whole  practice,  to  be  used,  in  suits  in  equity  or  ad- 
miralty, by  the  circuit  and  district  courts." 

Under  authority  conferred  by  these  statutes  the  Su- 
preme Court  at  its  February  term,  1822,  prescribed  thirty- 
three  rules  to  regulate  the  equity  practice  of  the  federal 
courts  of  first  jurisdiction.8  Subsequent  thereto,  at  the 
January  term,  1842,  these  rules  were  much  enlarged,  and 
were  increased  in  number  to  ninety-two.9 

Since  that  time  three  others  have  been  added.  One  is 
in  reference  to  giving  a  personal  decree  against  the  mort- 
gagor under  certain  circumstances  in  a  foreclosure  suit, 
which  was  promulgated  at  the  December  term,  1863. 10 
Another  one  gave  the  judge  who  took  part  in  a  decision 
granting  or  dissolving  an  injunction  a  certain  discretion 
as  to  suspending  or  modifying  an  injunction  during  the 
pendency  of  an  appeal.  It  was  promulgated  at  the  Oc- 
tober term,  1878.11  And  the  last  was  intended  to  prevent 
collusive  suits  by  stockholders  for  causes  of  action  which 
should  be  asserted  in  the  first  instance  by  the  directors  or 
managing  officers  of  a  corporation.  It  was  promulgated 
at  the  October  term,  1881.12 

These  rules  remained  in  force  until  November  4,  1912. 
when  the  Supreme  Court  promulgated  a  new  draft  which 
went  into  effect  February  1,  1913.  This  draft  changed  the 
old  ones  so  radically  as  practically  to  constitute  a  new  sys- 
tem and  render  obsolete  a  great  mass  of  decisions  constru- 
ing the  old  ones.13 

s  7  Wheat,  xvii.  11  97  U.  S.  vii. 

»  1  How.  xli  12  104  U.  S.  ix. 

10  1  Wall.  v.  is  See  33  Sup.  Ct  xx. 


422  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  10 

The  right  of  Congress  to  authorize  the  adoption  of  these 
rules  by  the  courts  has  been  upheld.14 

The  courts,  however,  can  only  regulate  procedure  un- 
der this  power;  they  cannot,  under  the  guise  of  a  rule,  af- 
fect the  jurisdiction  of  the  courts.15 

Under  old  rule  90  the  practice  of  the  federal  courts  in 
cases  not  covered  by  the  rules  is  "the  present  practice  of 
the  High  Court  of  Chancery  in  England."  Although,  as 
has  been  seen  above,  the  question  of  jurisdiction  in  equity 
depends  upon  the  English  jurisdiction  of  the  equity  courts, 
as  it  was  at  the  time  of  the  Constitution,  or  the  enactment 
of  the  judiciary  act  immediately  after  the  adoption  of  the 
Constitution,  yet,  as  regards  questions  of  practice,  this  rule 
meant  to  adopt  the  practice  of  the  High  Court  of  Chan- 
cery as  it  existed  at  the  time  the  rules  were  adopted.  That 
was  in  1842.16 

In  Thomson  v.  Wooster  17  the  Supreme  Court  calls  at- 
tention to  the  fact  that  the  best  exponent  of  the  English 
practice  is  the  edition  of  Daniell's  Chancery  Practice  issued 
in  the  year  1837.  It  also  recommends  Smith's  Chancery 
Practice  as  valuable  for  the  same  purpose.  It  may  be 
added  that  the  first  edition  of  Story's  Equity  Pleading  was 
published  about  this  same  time.  A  companion  work  to 
this  is  Curtis'  Equity  Precedents. 

In  the  recent  revision,  old  rule  90,  adopting  the  practice 
of  the  English  High  Court  of  Chancery  as  of  1842,  is 
omitted.  This  omission,  however,  cannot  change  the  fact 

i*Wayman  v.  Southard,  10  Wheat.  1,  42,  6  L.  Ed.  253.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §§  258,  259;  Cent.  Dig.  §§  793,  795. 

is  The  St.  Lawrence,  1  Black,  522,  17  L.  Ed.  180;  In  re  Phenix 
Ins.  Co.,  118  U.  S.  610,  7  Sup.  Ct.  25,  30  L.  Ed.  274.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §§  78-80,  832;  Cent.  Dig.  §§  274-292,  911. 

16  THOMSON  v.  WOOSTER,  114  U.  S.  104,  5  Sup.  Ct.  788,  29  L. 
Ed.  103;  Badger  v.  Badger,  Fed.  Cas.  No.  717.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  335;  Cent.  Dig.  §§  902-907y2. 

IT  THOMSON  v.  WOOSTER,  114  U.  S.  104,  5  Sup.  Ct.  788,  29  L. 
Ed.  105.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  335;  Cent.  Dig.  §§ 


§    154)         EQUITY   PROCEDURE   IN   FEDERAL  COURTS  423 

that  section  913,  just  quoted,  requires  the  practice  to  be 
"according  to  the  principles,  rules,  and  usages  which  be- 
long to  courts  of  equity,"  except  as  changed  by  statute  or 
rule.  As  we  get  these  "principles,  rules,  and  usages"  from 
the  mother  country,  we  must  still  look  to  the  standard  au- 
thorities in  matters  not  controlled  by  rule. 

Under  section  918  of  the  Revised  Statutes,18  the  district 
courts  can  prescribe  rules  of  practice  not  inconsistent  with 
the  rules  of  the  Supreme  Court,  but  by  rule  79  a  majority 
of  the  circuit  judges  for  the  circuit  must  concur  in  their 
adoption. 


SAME— PLEADING— GENERAL  REQUISITES  OF 
THE  BILL 

154.  The  ancient  form  of  bills  in  equity  has  been  much 
simplified  in  the  federal  equity  rules  by  authoriz- 
ing the  omission  of  formal  averments  and  abbre- 
viating the  method  of  stating  the  cause  of  action. 
But  it  must  show 

(a)  The  jurisdiction  of  the  court  as  a  federal  court. 

(b)  The  jurisdiction  of  the  court  as  an  equity  court. 
The  bill  must  be  signed  by  counsel  as  a  pledge  of  good 

faith. 

The  first  step  in  the  institution  of  an  equity  suit  in  the 
federal  courts  is  filing  the  bill. 

Its  general  form  is  the  subject  of  the  twenty-fifth  rule. 
Any  bill  in  equity  in  the  federal  courts  must,  independent 
of  its  special  character,  embody  two  essentials:  First,  it 
must  show  the  jurisdiction  of  the  court  as  a  federal  court ; 
and  second,  it  must  show  the  jurisdiction  of  the  court  as  an 
equity  court. 

i«  U.  S.  Conip.  St.  1901,  p.  685. 


424  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

Federal  Jurisdiction 

The  allegations  necessary  to  show  its  jurisdiction  as  a 
federal  court  have  been  discussed  in  connection  with  the 
general  jurisdiction  of  the  federal  courts.19  It  must  show 
in  general  the  citizenship  of  the  parties,  if  that  is  the 
ground  of  the  jurisdiction;  the  federal  question  involved, 
if  that  is  the  ground  of  jurisdiction;  the  amount  involved, 
if  that  is  an  essential  element  of  jurisdiction;  and  the  resi- 
dence. These  are  covered  by  the  first  two  paragraphs  of 
the  twenty-fifth  rule. 

Equity  Jurisdiction 

In  showing  the  jurisdiction  of  the  court  as  an  equity 
court,  the  general  rules  of  chancery  pleading  and  prac- 
tice apply;  but  they  are  beyond  the  range  of  this  treatise. 
It  was  once  said  that  a  bill  in  chancery  contained  a  story 
thrice  told.  Under  the  equity  rules,  however,  many  of  the 
allegations  customary  in  the  old  English  bills  in  chancery 
may  be  omitted,  though  they  are  still  frequently  inserted, 
apparently  for  no  other  reason  than  that  lawyers,  when 
they  prepare  bills,  follow  blindly  the  old  form  books. 

The  only  thing  necessary  is  in  the  language  of  the  twen- 
ty-fifth rule,  "a  short  and  simple  statement  of  the  ultimate 
[facts  upon  which  the  plaintiff  asks  relief,  omitting  any 
mere  statement  of  evidence." 

The  bill  should  ask  the  special  relief  desired,  and  con- 
tain a  prayer  for  general  relief.  Under  the  latter  prayer 
any  relief  may  be  granted  consistent  with  the  facts  stated, 
although  it  is  not  specially  prayed  for.20 

If  it  asks  special  relief  pending  the  suit,  it  must  be 
sworn  to. 

Parties 

On  account  of  the  constant  inconvenience  experienced  in 
the  federal  courts  from  inability  to  make  the  proper  par- 

i»  Ante,  p.  218  et  seq. 

zoHobson  v.  Me  Arthur,  16  Pet.  182.  10  L.  Ed.  930;  Tyler  v.  Sav- 
age, 143  U.  S.  79,  12  Sup.  Ct.  340,  36  L.  Ed.  82.  See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  427;  Cent.  Dig.  §§  1001-1014. 


§    154)         EQUITY   PROCEDURE   IN   FEDERAL  COURTS  425 

ties,  it  is  provided  by  rule  25  that,  in  case  persons  appear- 
ing to  be  proper  are  not  made  parties,  the  bill  must  show 
that  they  are  out  of  the  jurisdiction,  or  cannot  be  joined 
without  ousting  the  jurisdiction.  It  has  been  shown  in  a 
previous  connection  that  this  does  not  authorize  a  bill 
where  the  parties  omitted  from  it  are  so  essential  that  no 
proper  decree  can  be  made  in  their  absence.21 

Signature  of  Counsel 

Under  rule  24  every  bill  or  other  pleading  shall  be  signed 
individually  by  one  or  more  solicitors  of  record,  and  such 
signatures  shall  be  considered  as  a  certificate  by  each 
solicitor  that  he  has  read  the  pleading  so  signed  by  him, 
that  upon  the  instructions  laid  before  him  regarding  the 
case  there  is  good  ground  for  the  same,  that  no  scandalous 
matter  is  inserted  in  the  pleading,  and  that  it  is  not  inter- 
posed for  delay. 

This  signature  of  counsel  is  intended  as  a  pledge  of 
good  faith.  A  bill  which  does  not  contain  it  is  defective, 
though  an  indorsement  by  counsel  will  be  treated  as  a  sig- 
nature.22 

A  bill  which  is  not  signed  by  counsel  will  be  ordered  off 
the  rolls,  but  if  it  is  signed  the  court  will  permit  it  to  be  re- 
stored to  the  rolls,  though  in  that  case  it  is  practically  a 
new  bill,  and  does  not  relate  back  to  the  time  of  its  first 
filing.23 

Impertinent  Matter 

It  is  an  inherent  power  of  courts  of  equity  to  protect  their 
own  records,  and  to  guard  litigants  from  unnecessary  and 
irrelevant  attacks.  Hence  a  bill  which  is  rambling  and 
prolix  may  be  ordered  off  the  files.  If  it  contains  any 
scandalous  or  impertinent  matter,  the  court  will  act  all  the 

21  Ante,  p.  256  et  seq. 

22  Dwight  v.  Humphreys,  Fed.  Gas.  No.  4,216.    See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  Sfl;  Cent.  Dig.  §  613. 

23  Roach  v.  Hulings,   Fed.   Cas.  No.  11,874.     See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  311;  Cent.  Dig.  §  613. 


420  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

more  quickly ;   and  under  rule  21  it  can  in  such  case  act  on 
its  own  motion.24 

Parties 

The  suit  should  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  and  any  person  may  be  a  defendant  who 
has  or  claims  an  interest  adverse  to  the  plaintiff.  Rules 
37,  38,  and  39  contain  liberal  provisions  for  suits  in  a  rep- 
resentative capacity,  for  interventions,  and  for  omission  of 
absent  parties  who  would  defeat  the  jurisdiction. 

Interrogatories 

Under  the  old  rules  the  plaintiff  could  propound  inter- 
rogatories to  the  defendant,  annexing  them  to  his  bill; 
but  the  defendant  could  not  return  the  compliment,  his 
only  remedy  being  a  bill  of  discovery.25 

The  new  rules  in  this  respect  are  more  flexible.  Rule 
58  allows  either  to  propound  interrogatories  to  the  other, 
under  judicious  restrictions  as  to  time,  contents,  and  en- 
forcement. It  is  so  liberal  in  its  provisions  as  to  obviate 
the  necessity  for  bills  of  discovery. 

SAME— SAME— INJUNCTION  BILLS 

155.  Injunction  proceedings  are  instituted  by  the  filing  of 
a  bill  followed  by  an  order  to  show  cause.  In  ex- 
ceptional cases,  where  it  is  necessary  to  preserve 
the  status  quo,  the  court  will  issue  a  temporary 
restraining  order. 

The  injunction  bill  must  be  sworn  to. 

The  injunction  remedy  is  an  extraordinary  one,  and  such 
relief  should  not  be  granted  unless  it  is  necessary 
for  the  protection  of  the  plaintiff's  rights. 

24  Kelley  v.  Boettcher,  85  Fed.  55,  29  C.  C.  A.  14.     See  "Equity," 
Dec.  Dig.  (Key-No.)  §  151;  Cent.  Dig.  §§  380-382. 

25  Oro  Water,  Light  &  Power  Co.  v.  Oroville  (C.  C.)  162  Fed.  975. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  351;  Cent.  Dig.  §  924;  "Equity," 
Dec.  Dig.  (Key-No.)  §  140;  Cent.  Dig.  §§  317,  318. 


§   155)         EQUITY  PROCEDURE  IN  FEDERAL  COURTS  427 

The  practice  on  bills  praying  special  relief,  like  injunction 
bills,  is  carefully  regulated  by  the  federal  statutes  and  rules. 
A  bill  for  an  injunction  should  always  be  sworn  to,  though 
this  is  not  necessary  in  ordinary  bills.  When  filed,  the 
proper  practice  is  to  issue  a  rule  to  show  cause  why  the 
injunction  should  not  be  granted,  and  name  a  day  for  the 
hearing  of  such  a  rule.  The  remedy  by  injunction  is  an 
extraordinary  remedy,  and  in  theory  such  relief  should  not 
be  granted  unless  it  is  necessary  for  the  protection  of  the 
plaintiff's  rights.  It  should  never  be  granted  merely  be- 
cause it  will  do  no  harm.28 

Equity  rule  73  (corresponding  to  old  rule  55,  but  much 
stricter)  provides: 

"No  preliminary  injunction  shall  be  granted  without  no- 
tice to  the  opposite  party.  Nor  shall  any  temporary  re- 
straining order  be  granted  without  notice  to  the  opposite 
party,  unless  it  shall  clearly  appear  from  specific  facts, 
shown  by  affidavit  or  by  the  verified  bill,  that  immediate 
and  irreparable  loss  or  damage  will  result  to  the  applicant 
before  the  matter  can  be  heard  on  notice.  In  case  a  tem- 
porary restraining  order  shall  be  granted  without  notice, 
in  the  contingency  specified,  the  matter  shall  be  made  re- 
turnable at  the  earliest  possible  time ,  and  in  no  event  later 
than  ten  days  from  the  date  of  the  order,  and  shall  take 
precedence  of  all  matters,  except  older  matters  of  the  same 
character.  When  the  matter  comes  up  for  hearing  the  par- 
ty who  obtained  the  temporary  restraining  order  shall  pro- 
ceed with  his  application  for  a  preliminary  injunction,  and 
if  he  does  not  do  so  the  court  shall  dissolve  his  temporary 
restraining  order.  Upon  two  days'  notice  to  the  party  ob- 
taining svich  temporary  restraining  order,  the  opposite  par- 
ty may  appear  and  move  the  dissolution  or  modification  of 
the  order,  and  in  that  event  the  court  or  judge  shall  pro- 

2«  Ladd  v.  Oxnard  (C.  C.)  75  Fed.  703;  American  Cereal  Co.  v. 
Ell  Pettijohn  Cereal  Co.,  76  Fed.  372,  22  C.  C.  A.  236;  Teller  v.  U. 
K,  113  Fed.  463,  51  C.  C.  A.  297.  See  "Injunction,"  Dec.  Diy.  (Key- 
.Vo.)  §§  136,  137;  Cent.  Dig.  §§  305-309. 


428  PROCEDURE — ORIGINAL   JURISDICTION  (Ch.  19 

ceed  to  hear  and  determine  the  motion  as  expeditiously  as 
the  ends  of  justice  may  require.  Every  temporary  restrain- 
ing order  shall  be  forthwith  filed  in  the  clerk's  office." 

And  this  notice  is  necessarily  implied  by  section  263  of 
the  Judicial  Code,27  which  reads  as  follows: 

"Whenever  notice  is  given  of  a  motion  for  an  injunction 
out  of  a  district  court,  the  court  or  judge  thereof  may,  if 
there  appears  to  be  danger  of  irreparable  injury  from  delay, 
grant  an  order  restraining  the  act  sought  to  be  enjoined 
until  the  decision  upon  the  motion ;  and  such  order  may  be 
granted  with  or  without  security,  in  the  discretion  of  the 
court  or  judge." 

When  the  effect  of  issuing  a  rule  to  show  cause  without 
any  preventive  process  would  be  that  it  would  leave  the 
defendant  free  to  change  the  status  quo,  the  court,  in  its 
discretion,  may  issue  a  temporary  restraining  order.  The 
sole  purpose  of  this  order,  however,  in  contemplation  of 
the  statutes  regulating  the  subject,  is  to  preserve  the  status 
quo.  It  is  necessarily  ex  parte  in  its  nature,  and  can  be 
made  an  instrument  of  great  oppression;  for  by  such  an 
order  the  defendant  is  often  compelled  to  take  action  going 
beyond  the  mere  preservation  of  the  status  quo.  It  is  prac- 
tically condemning  him  unheard.28 

Thus  the  theory  as  to  issuing  injunctions  in  the  federal 
courts  is  simple,  and  thoroughly  settled  both  by  the  stat- 
utes and  decisions.  It  is,  in  the  first  place,  the  filing  of 
the  bill  and  the  issuing  of  an  order  to  show  cause;  in  the 
next  place,  the  issuing  of  a  temporary  restraining  order  in 

27  See,  also,  Mowrey  v.  Indianapolis  &  C.  R.  Co.,  Fed.  Cas.  No. 
9,891.  See  "Injunction,"  Dec.  Dig.  (Key-No.)  §  1^3;  Cent.  Dig.  §  815. 

28  Fanshawe  v.  Tracy,  Fed.  Cas.  No.  4,643;  Walworth  v.  Cook 
Co.,  Fed.  Cas.  No.  17,136;  Cohen  v.  Delavina  (C.  C.)  104  Fed.  946; 
Miller  v.  Mutual  Reserve  Fund  Life  Ass'n  (C.  C.)  109  Fed.  278; 
North  American  Land  &  Timber  Co.  v.  Watkius,  109  Fed.  101,  48  C. 
C.  A.  254 ;  Barstow  v.  Becket  (C.  C.)  110  Fed.  826 ;  United  Railroads 
of  San  Francisco  v.  San  Francisco  (C.  C.)  180  Fed.  948;  Blacklock 
v.  U.  S.,  208  TJ.  S.  75,  28  Sup.  Ct.  228,  52  L.  Ed.  396.  See  "Injunc- 
tion," Dec.  Dig.  (Key-No.)  §  US;  Cent.  Dig  §  315. 


§    156)          EQUITY   PROCEDURE   IN   FEDERAL   COURTS  429 

the  exceptional  cases  where  that  order  is  necessary  to  pre- 
serve the  status  quo.  It  must  be  confessed,  however,  that 
the  practice  of  the  courts  does  not  always  accord  with  the 
theory.  It  is  not  uncommon  to  turn  the  temporary  re- 
straining order  into  an  order  that  is  in  all  respects  the 
equivalent  of  an  ex  parte  injunction  order.  Thus  the  good 
nature  of  judges  and  pertinacity  of  counsel  often  change 
the  established  practice,  and  not  always  with  the  effect  of 
furthering  the  ends  of  justice. 


SAME— SAME— JUDGES  WHO  MAY  ISSUE 
INJUNCTIONS 

156.  Injunctions  may  be  issued  by  Supreme  Court  justices 
or  district  judges,  and  in  exceptional  cases  by  cir- 
cuit judges. 

Section  264  of  the  Judicial  Code  provides  what  judges 
may  issue  injunctions.  It  reads: 

"Writs  of  injunction  may  be  granted  by  any  justice  of 
the  Supreme  Court  in  cases  where  they  might  be  granted 
by  the  Supreme  Court;  and  by  any  judge  of  a  district  court 
in- cases  where  they  might  be  granted  by  such  court.  But 
no  justice  of  the  Supreme  Court  shall  hear  or  allow  any 
application  for  an  injunction  or  restraining  order  in  any 
cause  pending  in  the  circuit  to  which  he  is  allotted,  else- 
where than  within  such  circuit,  or  at  such  place  outside  of 
the  same  as  the  parties  may  stipulate  in  writing,  except 
when  it  cannot  be  heard  by  the  district  judge  of  the  dis- 
trict. In  case  of  the  absence  from  the  district  of  the  dis- 
trict judge,  or  of  his  disability,  any  circuit  judge  of  the 
circuit  in  which  the  district  is  situated  may  grant  an  in- 
junction or  restraining  order  in  any  case  pending  in  the 
district  court,  where  the  same  might  be  granted  by  the  dis- 
trict judge." 


430  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

Under  this  the  Supreme  Court  judges  issue  injunctions 
only  in  exceptional  cases.29 


SAME— SAME— INJUNCTIONS  TO  STATE  COURTS 

157.  The  federal  courts  may  issue  injunctions  to  the  parties 
in  state  courts : 

(a)  In  limited  liability  proceedings. 

(b)  In  bankruptcy  proceedings. 

(c)  Whenever  it  becomes  necessary  to  protect  their  own 

jurisdiction  previously  acquired,  or 

(d)  When  an  injunction  is  necessary  to  relief  in  a  case 

in  which  it  has  had  prior  jurisdiction. 
Criminal  proceedings  in  a  state  court  will  not  be  en- 
joined. 

Section  265  of  the  Judicial  Code  provides  as  follows: 

"The  writ  of  injunction  shall  not  be  granted  by  any  court 
of  the  United  States  to  stay  proceedings  in  any  court  of  a 
state,  except  in  cases  where  such  injunction  may  be  au- 
thorized by  any  law  relating  to  proceedings  in  bankruptcy." 

Notwithstanding  the  general  language  of  this  provision, 
a  federal  court  will  refrain  from  issuing  injunctions  to  state 
courts  only  when  the  state  court  has  first  acquired  juris- 
diction.30 

But  it  will  issue  injunctions  to  the  state  courts,  or  rather 
to  the  parties,  wherever  it  is  necessary  to  protect  its  own 
jurisdiction  previously  acquired,  or  when  necessary  to  re- 
lief in  a  case  of  which  it  has  had  prior  jurisdiction.31 

20  Searles  v.  Jacksonville,  P.  &  M.  R.  Co.,  2  Woods,  621,  Fed.  Cas. 
No.  12,586.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  262;  Cent.  Dig.  § 
797. 

so  in  re  Watts,  190  TJ.  S.  1,  23  Sup.  Ct.  718,  47  L.  Ed.  933; 
MORAN  v.  STURGES,  154  U.  S.  256,  14  Sup.  Ct.  1019,  38  L.  Ed. 
981 ;  Kansas  City  Gas"  Co.  v.  Kansas  City  (D.  C.)  198  Fed.  500.  See 
"Courts"  Dec.  Dig.  (Key-No.)  §§  260,  282,  508;  Cent.  Dig.  §§  U18- 
1430. 

siDietzsch  v.  Huidekoper,  103  U.  S.  494,  26  L.  Ed.  497.  See 
"Courts."  Dec.  Dig.  (Key-No.)  §  508;  Cent.  Dig.  §§  Ut18-USO. 


§    158)         EQUITY  PROCEDURE  IN   FEDERAL  COURTS  431 

The  prohibition  against  injunctions  to  the  state  courts  ap- 
plies not  simply  to  the  courts  or  their  officers,  but  to  the 
parties  as  well.  A  federal  court  will  not  enjoin  the  parties 
from  a  proceeding'  in  a  state  court  any  more  than  it  will  en- 
join the  court  officers.82 

Criminal  proceedings  in  a  state  court  will  not  be  en- 
joined.88 

This  statute  was  first  pased  in  1793.  The  limited  lia- 
bility act  of  1851  is  not  affected  by  it,  and  the  federal  courts 
will  issue  injunctions  to  state  courts  under  that  act  to  pre- 
vent vessel  owners  from  being  proceeded  against  in  the 
state  courts.84 

The  right  to  issue  injunction  proceedings  in  bankruptcy 
cases  is  expressly  reserved  by  this  act;  in  fact,  it  is  allow- 
able to  enjoin  proceedings  in  state  courts  which  contravene 
the  provisions  of  the  bankrupt  act  even  by  such  summary 
process  as  by  rule  to  show  cause.35 

SAME— SAME— INJUNCTIONS  TO   STATE   OF- 
FICIALS OR  BOARDS 

158.  Injunctions  to  state  officials  or  boards  intended  to 
question  the  constitutionality  of  state  statutes  can 
only  be  issued  by  a  court  of  three  judges,  a  major- 
ity of  whom  must  concur,  and  after  five  days'  no- 

« 2  Wagner  v.  Drake  (D.  C.)  31  Fed.  849;  Dial  v.  Reynolds,  96  U. 
S.  340,  24  L.  Ed.  644.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  508; 
Cent.  Dig.  §§  1418-1430. 

33  Harkrader  v.  Wadley,  172  IT.  S.  148,  19  Sup.  Ct.  119,  43  L.  Ed. 
399.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  508;  Cent.  Dig.  §§  l'tlS- 
1430. 

34  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578.  3 
Sup.  Ct.  379,  27  L.  Ed.  1038:  MORAN  v.  STURGES.  154  U.  S.  250, 
14  Sup.  Ct.  1019,  38  L.  Ed.  981;  In  re  Whitelaw  (D.  C.)  71  Fed.  733. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  508;  Cent.  Dig.  §§  1393,  1418- 
U,SO. 

3  5  White  v.  Schloerb,  178  U.  S.  542,  20  Sup.  Ct.  1007.  44  L.  Ed. 
1183.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  217;  Cent.  Dig.  §§ 
323,  SSO,  340;  "Courts,"  Cent.  Dig.  § 


432  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

tice.  A  temporary  restraining  order  may  issue, 
and  the  case  is  expedited  in  every  way  possible, 
both  in  the  inferior  and  appellate  court. 

Section  266  of  the  Judicial  Code  is  an  addition  to  pre- 
existing law.  As  amended  March  4,  1913  (37  Stat.  1013, 
c.  160),  it  reads: 

"No  interlocutory  injunction  suspending  or  restraining 
the  enforcement,  operation,  or  execution  of  any  statute 
of  a  state  by  restraining  the  action  of  any  officer  of  such 
state  in  the  enforcement  or  execution  of  such  statute,  or  in 
the  enforcement  or  execution  of  an  order  made  by  an  ad- 
ministrative board  or  commission  acting  under  and  pursu- 
ant to  the  statutes  of  such  state,  shall  be  issued  or  granted 
by  any  justice  of  the  Supreme  Court,  or  by  any  district 
court  of  the  United  States,  or  by  any  judge  thereof,  or  by 
any  circuit  judge  acting  as  district  judge,  upon  the  ground 
of  the  unconstitutionality  of  such  statute,  unless  the  appli- 
cation for  the  same  shall  be  presented  to  a  justice  of  the 
Supreme  Court  of  the  United  States,  or  to  a  circuit  or  dis- 
trict judge,  and  shall  be  heard  and  determined  by  three 
judges,  of  whom  at  least  one  shall  be  a  justice  of  the  Su- 
preme Court  or  a  circuit  judge,  and  the  other  two  may  be 
either  circuit  or  district  judges,  and  unless  a  majority  of 
said  three  judges  shall  concur  in  granting  such  application. 
Whenever  such  application  as  aforesaid  is  presented  to  a 
justice  of  the  Supreme  Court,  or  to  a  judge,  he  shall  im- 
mediately call  to  his  assistance  to  hear  and  determine  the 
application  two  other  judges:  Provided,  however,  that  one 
of  such  three  judges  shall  be  a  justice  of  the  Supreme  Court, 
or  a  circuit  judge.  Said  application  shall  not  be  heard  or 
determined  before  at  least  five  days  notice  of  the  hearing 
has  been  given  to  the  governor  and  to  the  attorney  general 
of  the  state,  and  to  such  other  persons  as  may  be  defend- 
ants in  the  suit :  Provided,  that  if  of  opinion  that  irrepara- 
ble loss  or  damage  would  result  to  the  complainant  unless 
a  temporary  restraining  order  is  granted,  any  justice  of  the 


§    158)         EQUITY  PROCEDURE   IN  FEDERAL  COURTS  433 

Supreme  Court,  or  any  circuit  or  district  judge,  may  grant 
such  temporary  restraining  order  at  any  time  before  such 
hearing  and  determination  of  the  application  for  an  inter- 
locutory injunction,  but  such  temporary  restraining  order 
shall  remain  in  force  only  until  the  hearing  and  determina- 
tion of  the  application  for  an  interlocutory  injunction  upon 
notice  as  aforesaid.  The  hearing  upon  such  application  for 
an  interlocutory  injunction  shall  be  given  precedence  and 
shall  be  in  every  way  expedited  and  be  assigned  for  a  hear- 
ing at  the  earliest  practicable  day  after  the  expiration  of 
the  notice  hereinbefore  provided  for.  An  appeal  may  be 
taken  direct  to  the  Supreme  Court  of  the  United  States 
from  the  order  granting  or  denying,  after  notice  and  hear- 
ing, an  interlocutory  injunction  in  such  case.  It  is  fur- 
ther provided  that  if  before  the  final  hearing  of  such  appli- 
cation a  suit  shall  have  been  brought  in  a  court  of  the  state 
having  jurisdiction  thereof  under  the  laws  of  such  state,  to 
enforce  such  statute  or  order,  accompanied  by  a  stay  in 
such  state  court  of  proceedings  under  such  statute  or  order 
pending  the  determination  of  such  suit  by  such  state  court, 
all  proceedings  in  any  court  of  the  United  States  to  restrain 
the  execution  of  such  statute  or  order  shall  be  stayed  pend- 
ing the  final  determination  of  such  suit  in  the  courts  of  the 
state.  Such  stay  may  be  vacated  upon  proof  made  after 
hearing,  and  notice  of  ten  days  served  upon  the  attorney 
general  of  the  state,  that  the  suit  in  the  state  courts  is  not 
being  prosecuted  with  diligence  and  good  faith."  This  act 
applies  only  to  state  statutes  and  state  officers,  not  to  mu- 
nicipal ordinances  or  municipal  officers.88 

»«  Cumberland  Telephone  &  Telegraph  Co.  v.  Memphis  (D.  C.)  198 
Fed.  955.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  102,  508. 
HUGHES  FED.PB.(2o  ED.)— 28 


434  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  li) 


SAME— THE  PROCESS 

159.  Process  issues  upon  the  filing  of  the  bill.  It  is  usual 
to  file  with  the  clerk  a  praecipe  for  process.  A  gen- 
eral appearance  is  a  waiver  of  issuance  or  service 
of  process. 

Service  of  process  must  be  in  accordance  with  equity 
rule  13,  and  the  return  must  show  such  service. 

Form  of  Process 

On  filing  the  bill  the  process  issues.  It  is  usual  to  file 
with  the  clerk  a  praecipe  for  process,  and  not  to  rely  upon 
him  to  issue  it  merely  because  it  is  prayed  in  the  bill.  In 
fact  this  is  implied  from  the  language  of  rule  12,  which  pro- 
vides that  whenever  a  bill  is  filed,  and  not  before,  the  clerk 
shall  issue  the  process  of  subpoena  thereon,  as  of  course,  up- 
on the  application  of  the  plaintiff.  It  contains  the  names 
of  the  parties,  and  is  returnable  into  the  clerk's  office  twen- 
ty days  from  the  issuing  thereof.  At  its  bottom  is  a  memo- 
randum that  the  defendant  is  required  to  file  his  answer  or 
other  defense  in  the  clerk's  office  on  or  before  the  twentieth 
day  after  service,  excluding  the  day  thereof;  otherwise  the 
bill  may  be  taken  pro  confesso. 

As  the  object  of  the  issuance  and  service  of  process  is 
to  notify  the  defendant  of  the  proceedings  against  him,  it 
is  unnecessary  in  case  the  defendant  on  hearing  of  the  pro- 
ceeding voluntarily  appears.  A  general  appearance  on  his 
part  is  a  waiver  of  the  issuance  or  service  of  process.37 

Service  of  Process 

Equity  rule  13  provides  as  follows: 

"The  service  of  all  subpoenas  shall  be  by  delivering  a 
copy  thereof  to  the  defendant  personally,  or  by  leaving  a 
copy  thereof  at  the  dwelling  house  or  usual  place  of  abode 

37  Seattle  L.  S.  &  E.  R.  Co.  v.  Union  Trust  Co.,  79  Fed.  179,  24  C. 
C.  A.  512.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  3^5;  Cent.  Dig.  §  917. 


§    159)          EQUITY   PROCEDURE   IN   FEDERAL   COURTS  435 

of  each  defendant,  with  some  adult  person  who  is  a  mem- 
ber of  or  resident  in  the  family." 

As  notice  of  suit  is  essential  to  the  defendant  in  order  to 
enable  him  to  protect  himself,  the  provisions  as  to  service 
must  be  carefully  obeyed,  and- the  return  must  show  that 
they  have  been  so  obeyed.  Hence,  where  the  return  was 
to  the  effect  that  the  service  had  been  made  on  an  adult  per- 
son, who  resided  in  the  defendant's  place  of  abode,  the  court 
held  it  insufficient.  It  was  also  held  that  the  return  must 
show  that  the  party  on  whom  it  was  served  was  a  member 
or  resident  in  the  family  of  the  defendant,  not  merely  an 
adult  resident  in  the  defendant's  place  of  abode,  as  such  a 
person  might  be  a  mere  stranger,  like  a  guest  at  a  hotel, 
for  instance,  if  the  defendant  resided  at  a  hotel.88  The 
service  need  not  necessarily  be  in  a  dwelling  house,  and 
hence  a  service  was  upheld  which  was  made  in  a  grocery 
store  in  a  dwelling  house  which  was  all  one  building,  and 
the  party  who  kept  the  store  lived  upstairs.39 

A  process  of  subpoena  is  necessary  in  order  to  bring  the 
defendants  into  court,  though  other  notices  may  have  been 
served  on  them.  For  instance,  where  in  an  injunction  bill, 
an  order  to  show  cause  why  the  injunction  should  not  be 
issued  was  served  on  the  defendant,  it  was  still  held  that 
process  was  necessary.40 

Notwithstanding  the  provisions  of  this  rule,  substituted 
service  is  sometimes  permissible.  This  is  usually  the  case 
when  the  proceeding  is  ancillary  to  some  other  proceeding. 
In  such  case  service  may  be  made  upon  the  plaintiff's  at- 
torney. But  the  record  should  show  the  necessity  for  such 


ssBlythe  v.  Hinckley  (C.  C.)  84  Fed.  228.  But  compare  In  re 
Risteen  (D.  C.)  122  Fed.  732;  In  re  Norton  (D.  C.)  148  Fed.  301. 
See  "Equity,"  Dec.  Dig.  (Key-No.)  §  12S;  Cent.  Dig.  §§  296-302. 

39  Phoenix  Ins.  Co.  v.  Wulf  (C.  C.)  1  Fed.  775.  See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  123;  Cent.  Dig.  §§  296-30>. 

«>  Wheeler  v.  Walton  &  Whann  Co.  (C.  C.)  65  Fed.  720.  See  "Eq- 
uity," Dec.  Dig.  (Key-No.)  §  121;  Cent.  Dig.  §  294. 


436  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

service,  and  an  order  of  court  should  be  obtained  allowing 
it.41 

It  has  also  been  seen  in  another  connection  that  in  case 
of  certain  proceedings  to  foreclose  an  equitable  lien,  serv- 
ice may  be  made  by  publication.42 

Service  under  rule  15  must  be  made  by  the  marshal  or  his 
deputy,  or  by  some  person  specially  appointed  by  the  court 
for  the  purpose,  in  which  latter  case  the  person  so  appoint- 
ed must  make  affidavit  thereof.43 


SAME— DEFAULTS 

160.  If  the  defendant  does  not  appear  and  defend  within 
the  time  required  by  the  equity  rules,  the  plaintiff 
may  take  a  decree  by  default;  in  which  case  no 
proof  is  necessary  if  the  allegations  of  the  bill  are 
sufficient  as  a  basis  for  a  decree. 

The  defendant  is  required  by  rule  16  to  file  his  answer  or 
other  defense  to  the  bill  within  the  time  named  in  the  sub- 
prena  as  required  by  rule  12,  that  is,  on  or  before  twenty 
days  from  service  of  process  on  him,  on  pain  of  having  the 
bill  taken  for  confessed  and  the  cause  heard  ex  parte. 

And  equity  rule  17  provides  as  follows : 

"When  the  bill  is  taken  pro  confesso  the  court  may  pro- 
ceed to  a  final  decree  at  any  time  after  the  expiration  of  thirty 
days  after  the  entry  of  the  order  pro  confesso,  and  such 
decree  shall  be  deemed  absolute,  unless  the  court  shall, 
at  the  same  term,  set  aside  the  same,  or  enlarge  the  time 
for  filing  the  answer,  upon  cause  shown  upon  motion 

41  Abraham  v.  North  German  Ins.  Co.  (C.  C.)  37  Fed.  731,  3  L..R. 
A.  188 ;  Gregory  v.  PIRe,  79  Fed.  520,  25  C.  C.  A.  48.    See  "Equity," 
Dec.  Dig.  (Key-No.)  §  122;  Cent.  Dig.  §  295. 

42  Ante,  p.  277  et  seq. 

43Ryman  v.  Chales  (C.  C.)  12  Fed.  855;  Puleston  v.  U.  S.  (C.  C.) 
85  Fed.  570,  577.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §§  123,  124; 
Cent.  Dig.  §§  296-303. 


§    160)         EQUITY   PROCEDURE   IN  FEDERAL  COURTS  437 

and  affidavit.  No  such  motion  shall  be  granted,  unless  up- 
on the  payment  of  the  costs  of  the  plaintiff  up  to  that  time, 
or  such  part  thereof  as  the  court  shall  deem  reasonable,  and 
unless  the  defendant  shall  undertake  to  file  his  answer  with- 
in such  time  as  the  court  shall  direct,  and  submit  to  such 
other  terms  as  the  court  shall  direct,  for  the  purpose  of 
speeding  the  cause." 

When  the  bill  is  so  taken  for  confessed,  the  only  ques- 
tions left  open  are  such  questions  as  cannot  be  covered  by 
the  averments  of  the  bill ;  as,  for  instance,  the  amount  of 
damages  in  an  infringement  suit.  The  fact  of  infringement 
is  no  longer  open.44 

And  after  default  no  proof  is  necessary  on  the  allegations 
of  the  bill,  except  as  to  matters  of  account  or  of  similar 
character.48 

If,  however,  the  allegations  of  the  bill  themselves  are 
insufficient  to  support  a  decree,  a  default  cannot  be  entered 
even  where  no  appearance  or  defense  has  been  interposed.46 

The  default  necessary  to  justify  a  decree  by  default  is  a 
default  due  to  the  failure  of  the  defendant  to  appear  and  de- 
fend. If  he  has  appeared  and  defended,  the  court  cannot 
strike  his  answer  from  the  files  as  a  punishment  for  con- 
tempt, and  then  proceed  against  him  as  for  a  default.  Such 
action  would  not  be  due  process  of  law.47 

If  the  defendant  has  appeared,  though  he  has  not  de- 
fended, he  is  in  court  so  far  that  he  is  entitled  to  notice  of 

4*  Reedy  v.  Western  Electric  Co.,  83  Fed.  709,  28  C.  C.  A.  27.  See 
"Equity"  Dec.  Dig.  (Key-No.)  §  420;  Cent.  Dig.  §  970. 

< »  THOMSON  v.  WOOSTER,  114  U.  S.  104,  5  Sup.  Ct  788,  29  L. 
Ed.  105 ;  U.  S.  v.  650  Cases  of  Tomato  Catsup  (D.  C.)  166  Fed.  73 ; 
Webster  v.  Oliver  Ditson  Co.  (C.  C.)  171  Fed.  895.  See  "Equity," 
Dec.  Dig.  (Key-No.)  §  420;  Cent.  Dig.  §  970. 

4  e  Wong  Him  v.  Callahan  (C.  C.)  119  Fed.  381.  See  "Equity," 
Dec.  Dig.  (Key-No.)  §  420;  Cent.  Dig.  §  970. 

47  Hovey  v.  Elliott,  167  U.  S.  409,  17  Sup.  Ct.  841,  42  L.  Ed.  215; 
Barnes  v.  Trees  (D.  C.)  194  Fed.  230.  Compare  Hammond  Pack- 
ing Co.  v.  Arkansas,  212  U.  S.  322,  29  Sup.  Ct.  370,  53  L.  Ed.  530, 
15  Ann.  Cas.  645.  See  "Constitutional  Law,"  Dec.  Dig.  (Key-No.)  §§ 
273,  312. 


PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

any  application  for  final  decree  even  after  .default;  for  he 
has  the  right  to  be  heard  as  to  the  form  of  final  decree  to 
be  entered,  though  he  may  not  care  to  defend  on  the  mer- 
its.48 

A  final  decree  entered  on  a  default  cannot  be  set  aside 
after  the  expiration  of  the  term  at  which  it  is  entered.49 

If,  however,  the  decree  entered  upon  default  is  only  inter- 
locutory in  its  nature,  it  may  be  set  aside  at  a  subsequent 
term.50 

But  if  the  decree  was  entered  by  default  in  a  case  where 
the  court  had  not  acquired  jurisdiction  by  service  of  process 
or  otherwise,  it  may  be  set  aside  on  motion  even  at  a  sub- 
sequent term,  as  it  is  no  decree  at  all.51 

This  doctrine  that  a  default  decree,  if  final,  cannot  be  set 
aside,  must  not  be  confounded  with  the  right  of  the  court 
under  equity  rule  69  to  grant  a  rehearing  in  ordinary  cases 
at  any  time  during  the  succeeding  term.52 

4  s  Bennett  v.  Hoefner,  Fed.  Gas.  No.  1,320;  Southern  Pac.  R.  Co. 
v.  Temple  (C.  C.)  59  Fed.  17 ;  Davis  v.  Garrett  (C.  C.)  152  Fed.  723 ; 
Provident  Life  &  Trust  Co.  of  Philadelphia  v.  Camden  &  T.  R.  Co., 
177  Fed.  854,  101  C.  C.  A.  68.  These  decisions  were  rendered  under 
the  old  rules  which  required  a  formal  appearance  one  rule  day  be- 
fore the  answer.  The  new  rules  do  not  require  this,  but  there  are 
many  motions  of  a  defendant  that  constitute  an  appearance;  so  that 
the  reason  of  the  decisions  still  holds  good.  See  "Equity,"  Dec.  Dig. 
(Key-No.)  §  422;  Cent.  Dig.  §§  932-91,9. 

4 a  Austin  v.  Riley  (C.  C.)  55  Fed.  833;  Stuart  v.  St.  Paul  (C.  C.) 
63  Fed.  644.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  430;  Cent.  Dig. 
§§  1034-1047. 

so  Blythe  v.  Hinckley  (C.  C.)  84  Fed.  228.  See  "Equity,"  Dec.  Dig. 
(Key-No.)  §  430;  Cent.  Dig.  §§  1034-1041. 

51  Eldred  v.  American  Palace  Car  Co.  of  New  Jersey  (C.  C.)  103 
Fed.  209;  Arredondo  v.  Cuebas  y  Arredondo,  223  IT.  S.  376,  32  Sup. 
Ct.  277,  56  L.  Ed.  476.     See  "Equity,"   Dec.   Dig.  (Key-No.)   §   430; 
Cent.  Dig.  §§  1034-1047. 

52  MOELLE  v.  SHERWOOD,  148  U.  S.  21,  13  Sup.  Ct.  426,  37  L. 
Ed.   350.     See  "Courts,"  Dec.  Dig.   (Key-No.)   §   430;  Cent.  Dig.   §§ 
1034-1047. 


§   161)         EQUITY   PROCEDURE   IN   FEDERAL   COURTS 


SAME— THE   DEFENSE— MOTIONS 

161.  The  defense  is  made  by  motion  or  answer,  those  ap- 
pearing on  the  face  of  the  bill  or  intended  to  ques- 
tion the  jurisdiction  being  made  by  motion.  Dila- 
tory defenses  may  be  made  in  the  answer,  and  dis- 
posed of  before  the  main  trial. 

Defenses  involving  a  special  appearance  only  should  be 
made  by  motion  to  dismiss. 

Perhaps  the  most  radical  change  in  the  new  rules  is  that 
abolishing  demurrers  and  pleas,  and  substituting  motions 
and  answers.  New  rule  29  reads : 

"Demurrers  and  pleas  are  abolished.  Every  defense  in 
point  of  law  arising  upon  the  face  of  the  bill,  whether  for 
misjoinder,  nonjoinder,  or  insufficiency  of  fact  to  constitute 
a  valid  cause  of  action  in  equity,  which  might  heretofore 
have  been  made  by  demurrer  or  plea,  shall  be  made  by  mo- 
tion to  dismiss  or  in  the  answer ;  and  every  such  point  of 
law  going  to  the  whole  or  a  material  part  of  the  cause  or 
causes  of  action  stated  in  the  bill  may  be  called  up  and  dis- 
posed of  before  final  hearing  at  the  discretion  of  the  court. 
Every  defense  heretofore  presentable  by  plea  in  bar  or 
abatement  shall  be  made  in  the  answer  and  may  be  sepa- 
rately heard  and  disposed  of  before  the  trial  of  the  princi- 
pal case  in  the  discretion  of  the  court.  If  the  defendant 
move  to  dismiss  the  bill  or  any  part  thereof,  the  motion 
may  be  set  down  for  hearing  by  either  party  upon  five 
days'  notice,  and,  if  it  be  denied,  answer  shall  be  filed  with- 
in five  days  thereafter  or  a  decree  pro  confesso  entered." 

Special  Appearances 

The  implication  of  this  language  is  that  only  defenses  ap- 
pearing on  the  face  of  the  bill  shall  be  made  by  motion  to 
dismiss.  But  this  cannot  be  the  intent.  There  are  some 
defenses  which  must  be  the  subject  of  a  special  appearance, 


440  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

and  which  depend  on  facts  not  appearing  on  the  face  of  the 
bill.  They  could  not  be  joined  with  defenses  in  the  answer 
going  to  the  merits;  for  a  general  and  special  appearance 
cannot  in  the  nature  of  things  be  combined,53  and  it  is  not 
probable  that  the  court  intended  to  abrogate  this  doctrine. 

A  familiar  example  is  an  objection  to  the  service  of  pro- 
cess. Another  is  an  objection  to  the  district  of  suit.  These 
are  questions  of  jurisdiction  over  the  person,  which  cannot 
be  combined  with  defenses  to  the  merits.  They  do  not  ap- 
pear on  the  face  of  the  bill;  for  that  shows  nothing  as  to 
the  service  of  process,  and  the  district  of  the  defendant's 
residence  might  be  misstated.  It  is  believed  that  such  de- 
fenses must  be  made  by  motion  even  if  its  hearing  involved 
the  taking  of  testimony.  Otherwise  the  rules  do  not  pro- 
vide for  the  case. 

A  question  like  the  jurisdiction  of  the  court  as  a  federal 
court  either  over  the  subject-matter  or  person  was  raised 
by  demurrer  under  .the  old  rules  if  it  appears  from  the  facts 
stated  in  the  bill  itself.5*  Now  it  would  be  raised  by  mo- 
tion to  dismiss. 

Matters  in  Bar — Legal  Defenses 

Under  the  old  rules,  legal  defenses  going  to  the  merits 
and  appearing  on  the  face  of  the  bill  were  raised  by  demur- 
rer. Under  the  new  rule  above  quoted,  they  are  raised  by 
motion  to  dismiss,  and  the  hearing  on  such  motion  must 
proceed  along  lines  similar  to  the  old  hearings  on  demurrer. 
But  under  the  new  rule  they  may  also  be  raised  in  the  an- 
swer. 


53  Jones  v.  Andrews,  10  Wall.  327,  19  L.  Ed.  935.  See  "Appear- 
ance," Dec.  Dig.  (Key-No.)  §  23;  Cent.  Dig.  §  114;  "Equity,"  Dec. 
Dig.  (Key-No.)  §  127;  Cent.  Dig.  §  806. 

5*  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct  44,  36  L. 
Ed.  942.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  280;  Cent.  Dig.  §§  816- 
818;  "Equity,"  Dec.  Dig.  (Key-No.)  §  220;  Cent.  Dig.  §  497. 


§    161)         EQUITY  PROCEDURE   IN   FEDERAL  COURTS  441 

Instances  of  Defense  Formerly  Available  by  Demurrer,  Now 
by  Motion  to  Dismiss,  or  in  the  Answer 

This  is  the  proper  way  to  raise  the  question  that  there 
is  an  adequate  remedy  at  law.  If  the  case  asserted  in  the 
bill  belongs  to  any  general  class  of  jurisdiction  in  which 
an  equity  court  is  competent  to  grant  relief,  the  failure  to 
make  the  point  is  a  waiver  of  the  right  to  set  up  that  there 
is  an  adequate  legal  remedy.88 

The  defense  that  the  plaintiff  has  been  guilty  of  laches, 
or  that  his  claim  is  barred  by  the  statute  of  limitations,  can 
be  raised  in  the  same  way  if  the  necessary  facts  appear  on 
the  bill.58 

The  defense  that  the  bill  does  not  show  any  equity  is  also 
available  in  this  way,  if  appearing  on  the  face  of  the  bill. 
But  the  court  will  grant  relief  under  such  circumstances  if, 
on  any  possible  state  of  the  evidence  or  the  facts  contained 
in  the  bill,  it  could  give  relief,  though  those  facts  may  be 
stated  vaguely.87 

Two  important  additions  to  the  old  rules  and  practice  are 
new  rules  22  and  23.  The  first  provides  for  transferring 
to  the  law  side  of  the  court  a  suit  wrongly  brought  in  equi- 
ty, with  only  such  change  in  the  pleadings  as  is  essential, 
and  the  second  makes  a  similar  provision  as  to  a  suit 
wrongly  brought  on  the  common-law  side,  and  provides  for 
hearing  on  common-law  principles  any  common-law  mat- 
ter that  may  arise  in  an  equity  suit,  without  sending  it  to 
the  common-law  side. 

55  Brown,  B.  &  Co.  v.  Lake  Superior  Iron  Co.,  134  U.  S.  530,  10 
Sup.  Ct.  604,  33  L.  Ed.  1021;  Perego  v.  Dodge,  163  U.  S.  160,  16 
Sup.  Ct  971,  41  L.  Ed.  113;  Metropolitan  Ry.  Receivership,  208  U. 
S.  90,  28  Sup.  Ct.  219,  52  L.  Ed.  403 ;  Acord  v.  Western  Pocahontas 
Corporation  (C.  C.)  156  Fed.  989 ;  Id.,  174  Fed.  1019,  98  C.  C.  A.  62H. 
See  "Equity,"  Dec.  Dig.  (Key-No.)  §  220;  Cent.  Dig.  §  497. 

so  Speidel  v.  Henrici,  120  U.  S.  377,  7  Sup.  Ct.  610,  30  L.  Ed.  718; 
Thurmond  v.  Chesapeake  &  O.  Ry.  Co.,  140  Fed.  697,  72  C.  C.  A.  191. 
See  "Equity,"  Dec.  Dig.  (Key-No.)  §  223;  Cent.  Dig.  §  502. 

57  Pacific  Live  Stock  Co.  v.  Hanley  (C.  C.)  98  Fed.  327;  Failey  v. 
Talbee  (C.  C.)  55  Fed.  892.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  223; 
Cent.  Dig.  §  502. 


442  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  19 

No  express  procedure  for  raising  this  question  is  pre- 
scribed, but  the  natural  way  would  be  by  motion,  though 
there  is  no  reason  why  it  could  not  be  combined  with  other 
defenses  in  the  answer. 

The  same  may  be  said  as  to  new  rule  26,  which  states 
the  causes  of  action  which  may  be  joined  in  one  bill. 

Facts  Admitted  by  Motion  to  Dismiss 

A  demurrer  admits  only  facts  well  pleaded ;  not  general 
statements  or  inferences  or  conclusions  of  law.58  The  same 
principle  would  apply  to  a  motion  raising  questions  ap- 
parent on  the  face  of  the  bill. 

Joinder  of  Issue  on  Motion 

The  only  step  necessary  in  order  to  join  issue  on  a  mo- 
tion to  dismiss  is  to  have  it  set  down  for  hearing,  as  al- 
lowed by  the  last  sentence  of  rule  29.  This  requires  five 
days'  notice  to  the  opposing  party. 

Decision  on  Motion 

Under  rule  29,  if  the  motion  is  denied,  the  answer  shall 
be  filed  within  five  days  thereafter,  or  a  decree  pro  confesso 
may  be  entered.  This  implies  that  the  defendant  is  enti- 
tled to  answer  as  of  right ;  and  it  was  so  held  under  the  old 
rule  corresponding  to  rule  29.59 

Amendments  of  Bill 

If  the  motion  goes  to  matters  which  are  capable  of 
amendment,  the  court  in  sustaining  it  will  permit  such 
amendment.  The  new  rules  are  liberal  in  this  respect. 
Rule  19  provides : 

"The  court  may  at  any  time,  in  furtherance  of  justice, 
upon  such  terms  as  may  be  just,  permit  any  process,  pro- 
ceeding, pleading  or  record  to  be  amended,  or  material  sup- 

sschlcot  County  v.  Sherwood,  148  U.  S.  529,  13  Sup.  Ct.  695,  37 
L.  Ed.  546;  Equitable  Life  Assur.  Soc.  of  United  States  v.  Brown, 
213  U.  S.  25,  29  Sup.  Ct.  404,  53  L.  Ed.  682.  See  "Equity,"  Dec.  Dig. 
(Key-No.)  §  239;  Cent.  Dig.  §  494. 

s»Wooster  v.  Blake  (C.  C.)  7  Fed.  816.  See  "Equity,"  Dec.  Dig. 
(Key-No.)  §  176;  Cent.  Dig.  §  432. 


§    161)         EQUITY   PROCEDURE    IN   FEDERAL   COURTS  443 

plemental  matter  to  be  set  forth  in  an  amended  or  supple- 
mental pleading.  The  court,  at  every  stage  of  the  proceed- 
ing, must  disregard  any  error  or  defect  in  the  proceeding 
which  does  not  affect  the  substantial  rights  of  the  parties." 

And  rule  28  provides : 

"The  plaintiff  may,  as  of  course,  amend  his  bill  before  the 
defendant  has  responded  thereto,  but  if  such  amendment  be 
filed  after  any  copy  has  issued  from  the  clerk's  office,  the 
plaintiff  at  his  own  cost  shall  furnish  to  the  solicitor  of  rec- 
ord of  each  opposing  party  a  copy  of  the  bill  as  amended, 
unless  otherwise  ordered  by  the  court  or  judge. 

"After  pleading  filed  by  any  defendant,  plaintiff  may 
amend  only  by  consent  of  the  defendant  or  leave  of  the 
court  or  judge." 

This  right  to  amend  the  bill  after  decision  is  discretionary 
with  the  court,  and  is  not  a  matter  of  absolute  right.  If  the 
plaintiff  has  been  negligent  about  it,  or  has  unduly  delayed 
his  request  to  amend,  the  court  may,  in  its  discretion,  refuse 
him  the  right.60 

eo  Mercantile  Nat.  Bank  v.  Carpenter,  101  U.  S.  567,  25  L.  Ed. 
815;  Edward  P.  Allis  Co.  v.  Withlacoocuee  Lumber  Co.,  105  Fed. 
680,  44  C.  C.  A.  673.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  271;  Cent. 
Dig.  §§  558-560. 


444  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 


CHAPTER  XX 

PROCEDURE  IN  THE   ORDINARY  FEDERAL  COURTS  OF 

ORIGINAL   JURISDICTION   (Continued)— COURTS 

OF  EQUITY  (Continued) 

162.  The  Defense  (Continued) — The  Answer. 

1G3.  Same — Same — Joinder  of  Issue  on. 

164.  The  Proofs. 

165.  Same — Testimony  by  Deposition,  before  Examiners. 

166.  Same — Testimony   by   Deposition   under   Statutes. 

167.  References. 

168.  The  Decree — Form  of. 

169.  Same — Its  Enforcement. 

170.  Same — Reopening  of  Decree. 


THE  DEFENSE  (Continued)— THE  ANSWER 

162.  The  answer  is  the  method  of  setting  up  defenses  of 
fact,  and  also  such  defenses  of  law  as  may  be  made 
by  motion  to  dismiss,  and  are  not  required  to  be 
set  up  by  a  special  appearance. 

An  answer,  so  far  it  is  responsive  to  the  bill,  has  pro- 
bative force,  if  under  oath,  and  is  conclusive  un- 
less contradicted  by  two  witnesses  or  one  witness 
and  strong  corroborating  circumstances. 

Equity  rule  30  provides: 

"The  defendant  in  his  answer  shall  in  short  and  simple 
terms  set  out  his  defense  to  each  claim  asserted  by  the  bill, 
omitting  any  mere  statement  of  evidence  and  avoiding  any 
general  denial  of  the  averments  of  the  bill,  but  specifically 
admitting  or  denying  or  explaining  the  facts  upon  which 
the  plaintiff  relies,  unless  the  defendant  is  without  knowl- 
edge, in  which  case  he  shall  so  state,  such  statement  oper- 
ating as  a  denial.  Averments  other  than  of  value  or 
amount  of  damage,  if  not  denied,  shall  be  deemed  confess- 
ed, except  as  against  an  infant,  lunatic  or  other  person  non 


§    162)  THE   DEFENSE  445 

compos  and  not  under  guardianship,  but  the  answer  may 
be  amended,  by  leave  of  the  court  or  judge,  upon  reason- 
able notice,  so  as  to  put  any  averment  in  issue,  when  jus- 
tice requires  it.  The  answer  may  state  as  many  defenses, 
in  the  alternative,  regardless  of  consistency,  as  the  defend- 
ant deems  essential  to  his  defense. 

"The  answer  must  state  in  short  and  simple  form  any 
counterclaim  arising  out  of  the  transaction  which  is  the 
subject-matter  of  the  suit,  and  may,  without  cross-bill,  set 
out  any  set-off  or  counterclaim  against  the  plaintiff  which 
might  be  the  subject  of  an  independent  suit  in  equity  against 
him,  and  such  set-off  or  counterclaim,  so  set  up,  shall  have 
the  same  effect  as  a  cross-suit,  so  as  to  enable  the  court 
to  pronounce  a  final  judgment  in  the  same  suit  both  on  the 
original  and  cross-claims." 

An  answer  in  equity,  if  under  oath,  and  responsive  to 
the  charges  of  the  bill,  is  more  than  a  simple  pleading  put- 
ting facts  in  issue.  It  has  probative  force  in  itself,  and  is 
conclusive  unless  overcome  by  the  testimony  of  two  wit- 
nesses, or  one  witness  and  corroborating  circumstances. 
This  rule,  coming  from  the  doctrines  of  the  civil  law,  is 
firmly  established  in  chancery  practice.1 

But  this  rule  ceases  where  the  reason  for  it  no  longer 
exists,  and  hence  even  an  answer  under  oath,  professing 
not  to  be  on  personal  knowledge,  has  no  probative  force, 
and  merely  puts  the  matter  in  issue.2 

There  is  nothing  in  the  new  rules  indicating  any  inten- 
tion to  abrogate  the  pre-existing  law  as  to  the  probative 
force  of  a  sworn  answer,  unless  it  might  be  inferred  from 
the  allowance  of  inconsistent  defenses  (which  would  be  a 
right  hard  answer  to  swear  to) ;  but  this  is  hardly  enough 

1  LATTA  v.  KILBOURN,  150  U.  S.  524,  14  Sup.  Ct.  201,  37  L.  Ed. 
1169 ;  Kennedy  v.  Ouster,  174  Fed.  972,  98  C.  C.  A.  584.    See  "Equi- 
ty," Dec.  Dig.  (Key-No.)  §  31,5;  Cent.  Dig.  §§  715-124. 

2  Hanchett  v.  Blair,  100  Fed.  817,  41  C.  C.  A.  76 ;  Savings  &  Loan 
Soc.  v.  Davidson,  97  Fed.  69G,  38  C.  C.  A.  365.     See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  S$l;  Cent.  Dig.  §  687. 


446  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 

to  warrant  an  intent  to  change  a  rule  of  such  long  stand- 
ing, and  hence  it  is  believed  that  this  is  still  the  law. 

Prior  to  the  new  rules,  statements  in  the  bill  neither  ad- 
mitted nor  denied  by  the  answer  were  not  considered  as 
impliedly  admitted  but  had  to  be  proved.3 

But  rule  30,  above  quoted,  changes  this,  except  as  to 
averments  of  value  or  amount  of  damage. 

Another  material  change  made  by  new  rule  30  is  the  al- 
lowance of  inconsistent  defenses  in  the  answer.  Hereto- 
fore it  was  not  allowed.4 

Under  rule  43,  want  of  parties  may  be  set  up  by  an- 
swer. 

An  important  effect  of  rule  30  is  the  allowance  of  many 
defenses  or  counterclaims  to  be  set  up  by  answer  which 
heretofore  could  be  asserted  only  by  cross-bill.5 


SAME— SAME— JOINDER  OF  ISSUE  ON 

163.  The  joinder  of  issue  on  an  answer  is  made 

(a)  In  some  cases  by  motion  to  strike  out. 

(b)  In  others  by  reply. 

Usually  no  formal  reply  is  necessary. 

Under  the  former  practice  the  method  of  questioning  the 
sufficiency  of  an  answer,  whether  in  point  of  law  or  in  re- 
spect of  its  being  a  full  answer  to  the  charges  of  the  bill,, 
was  by  exception.  But  new  rule  33  provides: 

"Exceptions  for  insufficiency  of  an  answer  are  abolished. 
But  if  an  answer  set  up  an  affirmative  defense,  set-off  or 

s  Lovell  v.  Johnson  (C.  C.)  82  Fed.  206 ;  Butterfield  v.  Miller,  195 
Fed.  200,  208,  115  C.  C.  A.  152.  See  "Equity,"  Dec.  Dig.  (Key-No.) 
§  325;  Cent.  Dig.  §§  641-647. 

4  Ozark  Land  Co.  v.  Leonard  (C.  C.)  24  Fed.  660 ;  Von  Schroder 
v.  Brittan  (C.  C.)  98  Fed.  169.     See  "Equity,"  Dec.  Dig.  (Key-No.)  § 
184;  Cent.  Dig.  §  $5. 

5  Mitchell  v.  International  Tailoring  Co.  (C.  C.)  169  Fed.  145.    See 
"Equity,"  Dec.  Dig.  (Key-No.)  §  196;  Cent.  Dig.  §§  450-454. 


§    163)  THE   DEFENSE  447 

counterclaim,  the  plaintiff  may,  upon  five  days'  notice,  or 
such  further  time  as  the  court  may  allow,  test  the  suffi- 
ciency of  the  same  by  motion  to  strike  out.  If  found  in- 
sufficient but  amendable  the  court  may  allow  an  amend 
ment  upon  terms,  or  strike  out  the  matter." 

The  language  of  this  rule  makes  it  manifest  that  a  mo- 
tion to  strike  out  will  lie  only  to  new  or  affirmative  mat- 
ter in  the  answer,  and  not  for  its  failure  to  fully  answer 
the  bill  or  to  set  up  a  sufficient  defense  of  a  merely  nega- 
tive nature. 

If  defendant  fails  to  answer  fully,  plaintiff  under  new 
rule  30  can  treat  this  as  an  admission  of  the  truth  of  the 
unanswered  part.  If  he  wishes  a  discovery  he  can  pro- 
pound interrogatories  and  compel  a  reply  under  the  provi- 
sions of  new  rule  58. 

If  on  the  other  hand  the  answer  fails  to  set  up  a  good 
defense  in  law,  the  plaintiff  is  not  hurt,  but  can  contend  for 
his  relief  with  the  greater  confidence.  So  the  abolition  of 
the  old  practice  of  exceptions  does  no  harm. 

If  the  answer  was  not  subject  to  exception  for  insuffi- 
ciency, the  method  of  putting  in  issue  the  facts  set  up  in 
it  was  under  the  former  practice  by  replication.  Now  new 
rule  31  provides: 

"Unless  the  answer  assert  a  set-off  or  counterclaim,  no 
reply  shall  be  required  without  special  order  of  the  court 
or  judge,  but  the  cause  shall  be  deemed  at  issue  upon  the 
filing  of  the  answer,  and  any  new  or  affirmative  matter 
therein  shall  be  deemed  to  be  denied  by  the  plaintiff.  If 
the  answer  include  a  set-off  or  counterclaim,  the  party 
against  whom  it  is  asserted  shall  reply  within  ten  days 
after  the  filing  of  the  answer,  unless  a  longer  time  be  al- 
lowed by  the  court  or  judge.  If  the  counterclaim  is  one 
which  affects  the  rights  of  other  defendants  they  or  their 
solicitors  shall  be  served  with  a  copy  of  the  same  within 
ten  days  from  the  filing  thereof,  and  ten  days  shall  be  ac- 
corded to  such  defendants  for  filing  a  reply.  In  default  of 


448  PROCEDURE — ORIGINAL  JURISDICTION          (Ch.  20 

a  reply,  a  decree  pro  confesso  on  the   counterclaim  may 
be  entered  as  in  default  of  an  answer  to  the  bill." 

Hearing  on  Bill  and  Answer 

Another  step,  which  practically  amounts  to  joining  is- 
sue on  the  answer,  is  by  going  to  trial  on  bill  and  answer. 
This  is  tantamount  to  the  position  that  the  answer  is  so  in- 
sufficient as  not  to  amount  to  a  legal  defense — in  other 
words  to  a  demurrer  to  the  answer.6 

But  when  this  step  is  taken,  the  sufficiency  of  all  the 
facts  well  pleaded  in  the  answer,  whether  they  consist  of 
mere  denials  of  the  bill,  or  of  defenses  of  new  matter,  is 
admitted;  and  the  plaintiff,  by  resorting  to  it,  runs  the 
risk  of  making  his  case  rest  upon  the  position  that  he  is 
entitled  to  a  decree  upon  bill  and  answer ;  and,  if  he  should 
turn  out  to  be  mistaken,  he  has  no  further  right  to  insist 
upon  joining  issue  and  taking  proofs. 

Amendments  of  Answers. 

Under  the  former  practice,  amendments  of  answers  were 
allowed  witn  reluctance.  This  was  the  old  doctrine  of  the 
English  chancery  courts,  and  was  emphasized  by  old  equity 
rule  60.  But  the  new  rules  are  more  liberal  in  this  respect. 
New  rule  19  allows  the  amendment  of  any  pleading  in  fur- 
therance of  justice,  and  new  rule  30  makes  special  provi- 
sion for  the  amendment  of  answers. 

THE  PROOFS 

164.  The  evidence  in  equity  cases  is  taken  in  open  court  as 
a  rule,  the  other  methods  being  the  exception  and 
requiring  a  special  showing  to  authorize  their  use. 

By  section  862  of  the  Revised  Statutes  7  it  is  provided 
that  "the  mode  of  proof  in  causes  of  equity  and  of  admiral- 

e  Banks  v.  Manchester,  128  TJ.  S.  244,  9  Sup.  Ct.  36,  32  L.  Ed.  425. 
See  "Equity,"  Dec.  Dig.  (Key-No.)  §  213;  Cent.  Dig.  §  486. 
i  U.  S.  Comp.  St.  1901,  p.  661. 


§    165)  THE   PROOFS  449 

ty  and  maritime  jurisdiction  shall  be  according  to  rules 
now  or  hereafter  prescribed  by  the  Supreme  Court,  except 
as  herein  specially  provided." 

The  special  provisions  alluded  to  are  those  authorizing 
the  taking  of  depositions.  Subject  to  these  provisions,  the 
equity  rules  make  elaborate  provision  for  the  taking  of 
testimony.  They  are  contained  in  rules  46  to  56,  inclusive. 

The  policy  of  these  rules  is  a  complete  reversal  of  the 
former  policy  on  the  subject.  The  previous  practice  con- 
templated depositions  as  the  rule.  Under  new  rule  46  the 
evidence  is  taken  in  open  court,  except  as  otherwise  pro- 
vided. The  court  rules  upon  the  admissibility  of  evidence 
at  the  time,  allowing  a  party  whose  evidence  is  excluded 
to  embody  in  the  record  ^vdiat  he  expects  to  prove,  and  to 
except.  Under  rule  48,  arrangements  may  be  made  for 
taking  the  testimony  down  in  shorthand,  and  having  the 
stenographer's  fees  taxed  as  costs. 


SAME— TESTIMONY  BY  DEPOSITION   BEFORE 
EXAMINERS 

165.  In  exceptional  cases  the  evidence  may  be  taken  by 
deposition  before  an  examiner  appointed  by  the 
court. 

Equity  rule  47  provides  that  when  allowed  by  statute,  or 
in  exceptional  cases  to  be  shown  by  affidavit,  the  cour^  may 
permit  the  deposition  of  named  witnesses  to  be  taken  be- 
fore an  examiner  or  other  named  officer.  The  depositions 
of  the  plaintiff  must  be  taken  within  sixty  days  after  the 
cause  is  at  issue,  those  of  the  defendant  within  sixty  days 
after  the  expiration  of  the  plaintiff's  time,  and  the  rebutting 
evidence  within  twenty  days  after  the  expiration  of  the 
defendant's  time.  Rule  49  provides  that  they  shall  be  tak- 
en on  question  and  answer  or  in  narrative  form,  thus  doing 
away  with  the  old  practice  of  written  interrogatories  in 
HUGHES  FED.PB.(2o  ED.)— 29 


450  PROCEDURE — ORIGINAL  JURISDICTION          (Ch.  20 

such  cases.  Under  rule  51,  provision  is  made  for  noting  ex- 
ceptions to  evidence,  and  for  having  it  written  down  and 
signed.  Rule  52  provides  for  compelling  the  attendance  of 
witnesses  when  in  reach  of  a  subpoena.  And  rule  53  pro- 
vides for  notice  to  the  adverse  party. 


SAME— TESTIMONY  BY  DEPOSITION  UNDER 
STATUTES 

166.  Testimony  may  also  be  taken  by  deposition  in  the 
cases  provided  by  statute. 

Rule  54  provides  as  follows: 

"After  a  cause  is  at  issue,  depositions  may  be  taken  as 
provided  by  sections  863,  865,  866  and  867,  Revised  Stat- 
utes. But  if  in  any  case  no  notice  has  been  given  the  op- 
posite party  of  the  time  and  place  of  taking  the  deposition, 
he  shall,  upon  application  and  notice,  be  entitled  to  have 
the  witness  examined  orally  before  the  court,  or  to  a  cross- 
examination  before  an  examiner  or  like  officer,  or  a  new 
deposition  taken  with  notice,  as  the  court  or  judge  un- 
der all  the  circumstances  shall  order." 

In  addition  to  the  methods  prescribed  by  these  sections, 
such  depositions  may  be  taken  in  the  mode  prescribed  by 
the  laws  of  the  state  where  the  court  is  held.8 

It  will  be  observed  that  rule  54  allows  depositions  under 
these  statutes  only  "after  a  cause  is  at  issue."  But  section 
863  allows  such  depositions  "in  any  civil  cause  depending 
in  a  circuit  or  district  court  *  *  *  when  the  witness 
lives  at  a  greater  distance  from  the  place  of  trial  than  one 

s  Act  March  9,  1892,  c.  14,  27  Stat.  7  (U.  S.  Comp.  St.  1901,  p.  664). 
But  this  act  only  adopts  the  state  method  of  taking  depositions; 
it  does  not  enlarge  the  conditions  under  which  they  may  be  taken 
beyond  those  named  in  the  federal  statutes.  Hanks  Dental  Ass'n 
v.  'international  Tooth  Crown  Co.,  194  U.  S.  303,  24  Sup.  Ct.  700,  48 
L.  Ed.  989.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  350;  Cent.  Dig.  § 
923. 


§    166)  THE   PEOOFS  451 

hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about 
to  go  out  of  the  United  States,  or  out  of  the  district  in 
which  the  case  is  to  be  tried,  and  to  a  greater  distance  than 
one  hundred  miles  from  the  place  of  trial,  before  the  time 
of  trial,  or  when  he  is  ancient  and  infirm." 

This  language  is  wide  enough  to  allow  depositions  before 
a  case  is  at  issue,  and  that  must  have  been  its  intent.  .Oth- 
erwise valuable  testimony  would  be  inevitably  lost  while 
waiting  for  the  case  to  be  at  issue.  Even  under  new  rule 
12,  which  has  greatly  shortened  the  time  formerly  allowed 
defendant,  process  is  not  returnable  until  twenty  days  after 
issue,  and  the  defendant  need  not  defend  till  twenty  days 
after  service.  Hence,  if  process  is  served  on  the  last  day, 
thirty-nine  days  might  elapse  before  issue.  If  the  defend- 
ant then  moves  to  dismiss  instead  of  answering  and  raises 
a  delicate  jurisdictional  question  which  the  court  takes  un- 
der advisement,  there  is  no  telling  how  long  a  time  may 
elapse  before  issue. 

Even  the  Supreme  Court  cannot  repeal  a  statute  by  a 
rule.  Section  862  conferring  the  power  to  regulate  the 
mode  of  proof  in  equity  and  admiralty  cases  expressly  ex- 
cepts  cases  "herein  specially  provided."  Section  917  giv- 
ing a  similar  power  to  make  rules  limits  it  to  cases  "not  in- 
consistent with  any  law  of  the  United  States."  This  pre- 
serves the  right  given  by  section  863,  which  contains  no 
language  limiting  the  right  to  cases  at  issue,  and  which 
has  been  construed  not  to  mean  that;  and  hence  it  is  be- 
lieved that  notwithstanding  this  limitation  in  the  rule,  dep- 
ositions can  be  taken  in  the  urgent  cases  named  in  section 
863,  although  the  case  is  not  at  issue.9 

»  In  Flower  v.  MacGinniss,  li2  Fed.  377,  50  C.  C.  A.  291,  it  was 
held  that  depositions  may  be  taken  in  admiralty  before  issue  joined. 
In  Stegner  v.  Blake  (C.  C.)  36  Fed.  183,  the  statute  was  held  to 
apply  to  the  equity  court  On  the  other  hand,  Flower  v.  MacGin- 
niss, supra,  and  Stevens  v.  Missouri,  K.  &  T.  R.  Co.  (C.  C.)  104  Fed. 
(134,  held  that  depositions  could  not  be  taken  until  after  Issue  in  an 
equity  case.  The  ruling  was  based  on  the  language  of  old  rule  CA. 


452  PROCEDURE ORIGINAL  JURISDICTION  (Ch.  20 

Under  rule  56,  the  case  goes  on  the  trial  calendar  after 
the  lapse  of  the  time  allowed  for  depositions,  and  it  takes 
a  strong  showing  thereafter  to  allow  the  taking  of  any  more 
depositions. 

REFERENCES 

167.  It  is  common  in  chancery  cases  to  have  references  of 
various  matters  to  special  masters  or  commission- 
ers. This,  however,  is  not  a  matter  of  right,  and 
under  the  new  rules  is  only  made  on  showing  an 
exceptional  condition  requiring  it. 

When  special  questions  are  referred  to  a  master,  his  re- 
port is  entitled  to  great  weight,  because  of  his  su- 
perior facilities  for  investigation;  but  his  findings 
are  not  conclusive,  and  may  be  set  aside  by  the 
court. 

Exceptions  to  a  master's  report  must  be  filed  twenty  days 
from  the  filing  of  the  report,  or  may  be  taken  at 
the  time  the  same  is  read  to  the  parties  by  the- 
master. 

Exceptions  are  not  necessary  for  the  purpose  of  raising 
questions  of  law  appearing  on  the  face  of  the  re- 
port. 

On  consent  of  parties,  the  court  may  refer  to  a  master 
the  entire  question,  both  of  law  and  fact,  in  the 
case.  When  this  is  done,  the  decision  of  the  mas- 

which  was  in  this  respect  the  same  as  new  rule  54.  Neither  case 
considered  the  question  of  the  right  of  the  court  to  make  a  rule  in 
conflict  with  the  statute  as  guarded  by  the  limitations  above  quoted 
on  the  power  of  the  court.  The  first  case  expressly  held  that  a 
case  in  equity  is  "depending"  as  soon  as  the  bill  is  filed.  The  stat- 
ute itself  draws  no  distinction  between  equity  and  admiralty  cases, 
and  the  preservation  of  testimony  may  be  just  as  important  in  one 
as  in  the  other.  The  author  believes,  in  spite  of  these  decisions  and 
the  language  of  the  rule,  that  depositions  taken  under  section  863 
(U.  S.  Comp.  St.  1901,  p.  661)  in  an  equity  case  before  issue  ought 
to  be  admitted.  See  "Admiralty,"  Dec.  Dig.  (Key-No.)  §  16;  Cent. 
Dig.  §§  588-591;  "Courts,"  Dec.  Dig.  (Key-No.)  §  S50;  Cent.  Dig.  § 


§    167)  REFERENCES  453 

ter  is  presumptively  correct,  and  can  be  overruled 
only  when  there  has  been  manifest  error  in  the 
consideration  given  to  the  evidence,  or  in  the  ap- 
plication of  the  law. 

The  matter  of  references  is  covered  by  new  rules  59  to 
68,  inclusive. 

A  reference  is  not  a  matter  of  right,  and  is  not  allowed 
unless  the  plaintiff  shows  a  prima  facie  case;  nor  is  it  al- 
lowed for  the  mere  purpose  of  aiding  him  to  make  out  his 
case.10 

Under  new  rule  65,  a  reference,  save  in  matters  of  ac- 
count, is  the  exception,  not  the  rule,  and  is  made  only  on 
showing  that  some  exceptional  condition  requires  it. 

Nor  is  the  court  bound  to  refer  any  questions,  but  it  may, 
if  it  sees  fit,  go  into  questions  of  account  itself,  or  have  the 
accounts  made  up  at  the  bar  of  the  court.11 

The  appointment  of  masters  in  chancery  is  provided  by 
rule  68,  which  allows  district  courts  to  appoint  standing 
masters  in  chancery  in  their  respective  districts,  or  to  ap- 
point a  master  pro  hac  vice  in  any  particular  case.  Their 
duties  are  defined  by  Justice  Field  in  Kimberly  v.  Arms.12 

Under  section  68  of  the  Judicial  Code,  clerks  or  their  dep- 
uties should  not  be  appointed  special  masters  unless  the 
court  certifies  in  the  order  that  there  is  a  good  reason  for 
such  appointment  in  the  special  case.  If,  however,  they 
are  appointed,  such  appointment  cannot  be  questioned  col- 
laterally, and  their  acts  are  valid.13 

10  Columbian  Equipment  Co.  v.  Mercantile  Trust  &  Deposit  Co., 
113  Fed.  23,  51  C.  C.  A.  33.     See  "Equity,"  Dec.  Dig.  (Key-No.)  §§ 
399,  400;  Cent.  Dig.  §§  864-868. 

11  Brown  v.  Grove,  80  Fed.  564,  25  C.  C.  A.  644.     See  "Equity," 
Dec.  Dig.  (Key-No.)  §§  899,  400;  Cent.  Dig.  §§  864-868. 

12 129  U.  S.  512,  9  Sup.  Ct  355,  32  L.  Ed.  764.  See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  395;  Cent.  Dig.  §§  85-M56,  920,  921. 

is  Seaman  v.  Northwestern  Mutual  Life  Insurance  Co.,  86  Fed. 
500,  30  C.  C.  A.  212.  As  to  the  effect  of  disregarding  the  statute, 


454  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 

There  are  no  special  statutes  regulating-  the  amount  of 
compensation  of  such  masters,  but  that  is  a  question  of  dis- 
cretion in  the  court.14 

The  practice  of  referring  the  whole  case  to  a  master  has 
been  frequently  disapproved,  for  only  separate  questions 
should  be  referred  to  mm. 

If  an  order  is  entered  by  consent  of  both  parties  refer- 
ring to  him  all  questions  in  the  case,  it  comes  very  near  an 
arbitration,  and  his  findings  in  such  case  are  difficult  to 
question.  On  this  subject  Mr.  Justice  Field  says  in  Kim- 
berly  v.  Arms  :15 

"A  master  in  chancery  is  an  officer  appointed  by  the 
court  to  assist  it  in  various  proceedings  incidental  to  the 
progress  of  a  cause  before  it,  and  is  usually  employed  to 
take  and  state  accounts,  to  take  and  report  testimony,  and 
to  perform  such  duties  as  require  computation  of  interest, 
the  value  of  annuities,  the  amount  of  damages  in  particular 
cases,  the  auditing  and  ascertaining  of  liens  upon  property 
involved,  and  similar  services.  The  information  which  he 
may  communicate  by  his  findings  in  such  cases,  upon  the 
evidence  presented  to  him,  is  merely  advisory  to  the  court, 
which  it  may  accept  and  act  upon  or  disregard,  in  whole  or 
in  part,  according  to  its  own  judgment  as  to  the  weight  of 
the  evidence.  *  *  * 

"It  is  not  within  the  general  province  of  a  master  to  pass 
upon  all  the  issues  in  an  equity  case,  nor  is  it  competent 
for  the  court  to  refer  the  entire  decision  of  a  case  to  him 
without  the  consent  of  the  parties.  It  cannot,  of  its  own 

see  Briggs  v.  Neal,  120  Fed.  224,  56  C.  C.  A.  572 ;  Quinton  v.  Neville, 
154  Fed.  432,  83  C.  C.  A.  252.  See  "Equity,"  Dec.  Dig.  (Key-No.)  § 
393;  Cent.  Dig.  §§  852,  853. 

i*  Finance  Committee  of  Pennsylvania  v.  Warren,  82  Fed.  525,  27 
C.  C.  A.  472.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  39 It;  Cent.  Dig.  §§ 
S57-859. 

is  129  U.  S.  512,  9  Sup.  Ct.  355,  32  L.  Ed.  764.  See,  also,  Davis 
v.  Schwartz,  155  U.  S.  631,  15  Sup.  Ct.  237,  39  L.  Ed.  289 ;  Jefferson 
Hotel  Co.  v.  Brumbaugh,  168  Fed.  867,  94  C.  C.  A.  279.  See  "Equi- 
ty," Dec.  Dig.  (Key-No.)  §  409;  Cent.  Dig.  §§  904,  920-923. 


§    167)  BEFERENCES  455 

motion,  or  upon  the  request  of  one  party,  abdicate  its  duty 
to  determine  by  its  own  judgment  the  controversy  present- 
ed, and  devolve  that  duty  upon  any  of  its  officers.  But 
when  the  parties  consent  to  the  reference  of  a  case  to  a 
master  or  other  officer  to  hear  and  decide  all  Jhe  issues 
therein,  and  report  his  findings,  both  of  fact  and  of  law, 
and  such  reference  is  entered  as  a  rule  of  the  court,  the 
master  is  clothed  with  very  different  powers  from  those 
which  he  exercises  upon  ordinary  references,  without  such 
consent,  and  his'  determinations  are  not  subject  to  be  set 
aside  and  disregarded  at  the  mere  discretion  of  the  court. 
A  reference,  by  consent  of  parties,  of  an  entire  case,  for 
the  determination  of  all  its  issues,  though  not  strictly  a 
submission  of  the  controversy  to  arbitration — a  proceeding 
which  is  governed  by  special  rules — is  a  submission  of  the 
controversy  to  a  tribunal  of  the  parties'  own  selection,  to 
be  governed  in  its  conduct  by  the  ordinary  rules  applicable 
to  the  administration  of  justice  in  tribunals  established  by 
law.  Its  findings,  like  those  of  an  independent  tribunal, 
are  to  be  taken  as  presumptively  correct — subject,  indeed, 
to  be  reviewed  under  the  reservation  contained  in  the  con- 
sent and  order  of  the  court,  when  there  has  been  manifest 
error  in  the  consideration  given  to  the  evidence,  or  in  the 
application  of  the  law,  but  not  otherwise." 

But  where  the  master  is  appointed  otherwise  than  by 
consent,  and  only  special  questions  are  referred  to  him,  his 
findings,  while  strong,  are  not  conclusive.  There  is  always 
a  presumption  in  favor  of  such  findings,  as  he  has  had  the 
opportunity  of  seeing  the  witnesses  themselves,  and  has 
other  facilities  for  judging  of  the  value  of  their  testimony 
which  are  not  available  to  the  court.  But  in  such  case  they 
can  be  questioned  with  some  show  of  success.19 

i«Bosworth  v.  Hook,  77  Fed.  686,  23  C.  C.  A.  404;  Girard  Life 
Ins.,  Annuity  &  Trust  Co.  v.  Cooper,  162  U.  S.  529,  16  Sup.  Ct.  S79, 
40  L.  Ed.  1062 ;  Blassengame  v.  Boyd,  178  Fed.  1,  101  C.  C.  A.  129. 
21  Ann.  Cas.  800.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  409;  Cent. 
Dig.  §§  904,  920-923. 


456  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 

'  A  master,  in  exercising  a  reference,  may  take  testimony 
outside  of  the  district.17 

When  the  master's  report  is  completed  and  filed  in  the 
clerk's  office,  the  parties  have  twenty  days  therefrom  for 
the  purpose  of  filing  exceptions.18 

Great  ca're  is  requisite  in  the  preparation  of  these  excep- 
tions. Exceptions  to  questions  of  fact  cannot  be  taken  at 
all  unless  the  evidence  is  sent  up  with  the  report.19 

Nor  can  they  be  first  taken  in  the  appellate  court.20 

They  must  be  specific,  must  raise  clearly  defined  issues, 
and,  when  to  questions  of  fact,  they  should  refer  to  the 
part  of  the  testimony  relied  on  to  set  the  finding  aside.21 

The  proper  practice  in  reference  to  the  preparation  of  ex- 
ceptions is  for  the  master,  when  he  has  completed  his  draft 
of  report,  and  before  he  files  it,  to  notify  the  different  parties 
interested  to  appear  before  him,  and  then  to  submit  it  to 
them.  When  they  so  appear,  they  should  point  out  to  him 
the  parts  in  it  in  which  they  think  he  is  in  error,  so  as  to 
give  him  the  opportunity  of  correcting  it  if  he  sees  fit; 
and  he  should  embody  in  his  report  a  statement  that  the 
parties  had  excepted  to  certain  parts.  This  procedure  is 
rendered  necessary  by  the  line  of  decisions  which  hold 
that  matters  not  brought  to  the  attention  of  the  master  can- 
not be  made  the  subject  of  exception.22 

IT  Consolidated  Fastener  Co.  v.  Columbian  Fastener  Co.  (C.  C.)  85 
Fed.  54.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  395;  Cent.  Dig.  §  854. 

is  Rule  66.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  410;  Cent.  Dig. 
§§  905-919. 

i»  SHEFFIELD  &  B.  COAL,  IRON  &  R.  CO.  v.  GORDON,  151 
U.  S.  285,  14  Sup.  Ct.  343,  38  L.  Ed.  164.  See  "Equity,"  Dec.  Dig. 
(Key-No.)  §  410;  Cent.  Dig.  §§  905-919. 

20  Topliff  v.  Topliff,  145  U.  S.  156,  12  Sup.  Ct.  825,  36  L.  Ed.  658. 
See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  266;  Cent.  Dig.  §§ 
1552-1571. 

21  SHEFFIELD  &  B.   COAL,   IRON  &  R.  CO.  v.    GORDON,   151 
U.  S.  285,  14  Sup.  Ct.  343,  38  L.  Ed.  164;  Stanton  v.  Alabama  &  C. 
Railroad  Co.,  Fed.   Cas.   No.  13,296;   Farrar   v.   Bernheim,   75  Fed. 
136,  21  C.  C.  A.  264.    See  "Equity,"  Dec.  Dig.  (Key-No.)  §  410;  Cent. 
Dig.  §§  905-919. 

22  Columbus  S.  &  H.  R.  Co.'s  Appeal,  109  Fed.  177,  48  C.  C.  A. 


§    167)  REFERENCES  457 

If  the  master  should  disregard  this  practice,  and  file  his 
report  without  giving  the  parties  an  opportunity,  it  would 
seem  pretty  clear,  under  the  language  of  the  sixty-sixth 
rule,  that  they  could  then  file  their  exceptions  anyhow. 

Exceptions  are  not  necessary  for  the  purpose  of  raising 
questions  of  law  appearing  on  the  face  of  the  report.23 

The  reports  which  can  be  excepted  to  within  twenty  days 
are  those  reports  referred  to  the  master  in  which  he  acts  in 
a  semijudicial  capacity,  but  the  rule  does  not  apply  to  the 
right  of  a  special  master  appointed  to  conduct  sales  of 
property.24 

An  exception  should  not  be  used  as  a  means  of  setting 
up  a  new  defense  in  the  case  which  has  not  already  appear- 
ed in  the  pleadings.25 

The  master,  in  the  exercise  of  a  sound  discretion,  may 
permit  new  evidence  after  he  has  submitted  the  draft  of 
report  to  the  parties,  if  he  thinks  the  equities  of  the  case 
call  for  it.26 

But  after  the  report  has  been  drafted  it  is  not  permissible 
for  a  petitioner  to  come  in  and  amend  his  petition  so  as  to 
set  up  a  new  ground  of  recovery  thereon.27 

276 ;  McMicken  v.  Perln,  18  How.  507,  15  L.  Ed.  504 ;  Gay  Mfg.  Co. 
v.  Camp,  68  Fed.  67,  15  C.  C.  A.  226.  See  "Equity"  Dec.  Dig.  (Key- 
ATo.)  §  410;  Cent.  Dig.  §§  905-919. 

23  Home  Land  &  Cattle  Co.  v.  McNamara,  111  Fed.  822,  49  C.  C. 
A.  642 ;  Burke  v.  Davis,  81  Fed.  907,  26  C.  C.  A.  675 ;  Celluloid  Mfg. 
Co.  v.  Cellonite  Mfg.  Co.  (C.  C.)  40  Fed.  476.     See  "Equity,"  Dec. 
Dig.  (Key-No.)  §  410;  Cent.  Dig.  §§  905-919. 

24  Pewabic  Min.  Co.  v.  Mason,  145  U.  S.  349,  12  Sup.  Ct.  887,  36 
L.  Ed.  732.     See  "Equity,"  Dec.  Dig.  (Key-No.)  §  410;  Cent.  Dig.  §§ 
905-919. 

2  s  City  of  New  Orleans  v.  Warner,  180  U.  S.  199,  21  Sup.  Ct  353, 
45  L.  Ed.  493.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  410;  Cent.  Dig. 
§§  905-919. 

2  e  Central  Trust  Co.  v.  Richmond  &  D.  R.  Co.  (C.  C.)  69  Fed.  761. 
See  "Equity,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §§  880-885,  899. 

2  T  Central  Trust  Co.  v.  Marietta  &  N.  G.  Ry.  Co.  (C.  C.)  75  Fed. 
41.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §§  880-885, 
892. 


458  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 


THE  DECREE— FORM  OF 

168.  In  the  federal  practice,  it  is  not  necessary,  in  prepar- 

ing the  decree,  to  "bring  the  case  on,"  as  it  is  tech- 
nically called,  by  reciting  all  the  previous  proceed- 
ings in  the  case. 

A  decree  may  simply  commence  as  follows :  "This  cause 
came  on  to  be  heard  at  this  term,  and  was  argued  by  coun- 
sel; and  thereupon,  upon  consideration  thereof,  it  was  ad- 
judged, ordered,  and  decreed  as  follows,"  etc.28 

SAME— ITS  ENFORCEMENT 

169.  Equity  decrees  are  enforceable: 

(a)  Against  the  property  of  the  parties : 

(1)  By  writ  of  execution  if  the  decree  is  for  money; 

(2)  By  a  sale  of  the  property  under  a  master  com-; 

missioner  in  other  cases. 

(b)  Against  the  parties  themselves  when  the  purpose  of 

the  suit  is  to  compel  some  specific  act  by  them. 

An  equity  decree  may,  under  some  circumstances,  be  en- 
forced against  the  property  of  the  parties,  and,  under  oth- 
ers, against  the  parties  themselves,  and  it  must  be  consid- 
ered under  these  two  divisions. 

(a)  Against  Property  of  Parties 

Final  process  to  execute  a  decree,  if  it  is  for  money,  is 
by  writ  of  execution  in  the  form  used  in  the  district  court  in 
actions  of  assumpsit.29 

If  the  decree  is  not  simply  for  money,  but  contemplates 
the  sale  of  property  under  control  of  the  court,  its  method 
of  enforcement  is  the  appointment  of  a  standing  or  special 
master  to  conduct  the  sale.  It  is  usual  to  require  a  bond 

2  s  Rule  71.  2  9  Rule  8. 


§    169)  THE  DECREE  459 

of  such  an  officer,  but  is  not  necessary,  for  frequently  the 
provisions  of  the  decree  are  such  that  the  master  does  not 
handle  the  money,  which  is  paid  into  court  or  otherwise 
provided  for.30 

By  Sale 

The  act  of  March  3,  1893,31  makes  important  provisions 
as  to  sales  of  property  in  the  federal  courts.  It  is  as  fol- 
lows: 

"Be  it  enacted,"  etc.,  "that  all  real  estate  or  any  interest 
in  land  sold  under  any  order  or  decree  of  any  United  States 
court  shall  be  sold  at  public  sale  at  the  courthouse  of  the 
county,  parish,  or  city  in  which  the  property,  or  the  greater 
part  thereof,  is  located,  or  upon  the  premises,  as  the  court 
rendering  such  order  or  decree  of  sale  may  direct. 

"Sec.  2.  That  all  personal  property  sold  under  any  order 
or  decree  of  any  court  of  the  United  States  shall  be  sold  as 
provided  in  the  first  section  of  this  act,  unless,  in  the  opin- 
ion of  the  court  rendering  such  order  or  decree,  it  would 
be  best  to  sell  it  in  some  other  manner. 

"Sec.  3.  That  hereafter  no  sale  of  real  estate  under  any 
order,  judgment,  or  decree  of  any  United  States  court  shall 
be  had  without  previous  publication  of  notices  of  such  pro- 
posed sale  being  ordered  and  had  once  a  week  for  at  least 
four  weeks  prior  to  such  sale  in  at  least  one  newspaper 
printed,  regularly  issued  and  having  a  general  circulation 
in  the  county  and  state  where  the  real  estate  proposed  to 
be  sold  is  situated,  if  such  there  be.  If  said  property  shall 
be  situated  in  more  than  one  county  or  state,  such  notice 
shall  be  published  in  such  of  the  counties  where  said  prop- 
erty is  situated,  as  the  court  may  direct.  Said  notice  shall, 
among  other  things,  describe  the  real  estate  to  be  sold. 
The  court  may,  in  its  discretion,  direct  the  publication  of 

so  Seaman  v.  Northwestern  Mutual  Life  Ins.  Co.,  86  Fed.  493,  30 
C.  C.  A.  212.  See  "Equity,"  Dec.  Dig.  (Key-No.)  §  438;  Cent.  Dig.  § 
1055. 

si  27  Stat.  751,  c.  225  (U.  S.  Comp.  St.  1901,  p.  710). 


460  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 

the  notice  of  sale  herein  provided  for  to  be  made  in  such 
other  papers  as  may  seem  proper." 

This  statute  has  been  construed  to  be  intended  as  a  safe- 
guard for  the  protection  of  the  defendant,  from  which  it 
follows  that  its  provisions  may  be  waived  by  him  either 
expressly  or  impliedly.  Hence  when  a  sale  was  conducted 
not  in  strict  accordance  with  its  terms,  but  was  confirmed 
after  notice  to  the  defendant,  and  no  objection  by  him,  it 
was  held  to  be  valid.88 

Sales  of  Real  Estate 

On  the  other  hand,  as  to  sales  of  real  estate,  it  has  been 
held  to  be. mandatory,  and  to  render  a  sale  otherwise  than 
at  auction  absolutely  void  and  liable  to  repudiation  by  a 
purchaser  even  after  confirmation.88 

It  does  not  apply  to  sales  of  real  estate  in  bankruptcy.84 

In  conducting  a  judicial  sale,  the  bid  of  an  intending  pur- 
chaser is  a  mere  offer,  and  the  court  may  accept  it  or  not, 
as  it  sees  fit.35 

A  bidder  at  the  judicial  sale  so  far  becomes  a  party  to  the 
cause  that  the  court  may  proceed  against  him  by  rule  to 
compel  his  compliance  with  his  contract,  and  it  is  not  nec- 
essary to  bring  a  separate  suit  against  him  for  the  price.36 

It  follows  from  the  above  that,  as  a  bid  is  a  mere  offer, 

82  Nevada  Nickel  Syndicate  v.  Nickel  Co.  (C.  C.)  103  Fed.  391;  Na- 
tional Nickel  Co.  v.  National  Nickel  Syndicate  (C.  C.)  106  Fed.  Ill ; 
Godchaux  v.  Morris,  121  Fed.  482,  57  C.  C.  A.  434.  See  "Judicial 
Sales,"  Dec.  Dig.  (Key-No.)  §  11;  Cent.  Dig.  §§  25-30. 

33  Cumberland  Lumber  Co.  v.  Tunis  Lumber  Co.,  171  Fed.  352,  96 
C.  C.  A.  244.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  355;  Cent.  Dig.  §§ 
935,  936. 

34  In.  re  Britannia  Mining  Co.   (C.  C.  A.)  203  Fed.  .450,  reversing 
197  Fed.  459 ;   In  re  National  Mining  Exploration  Co.  (D.  C.)  193  Fed. 
232.     These  may  be  private.    Ante,  p.  162.     See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §§  261,  262. 

so  Camden  v.  May  hew,  129  U.  S.  73,  9  Sup.  Ct.  246,  32  L.  Ed.  60S; 
State  of  Tennessee  v.  Quintard,  80  Fed.  829,  26  C.  C.  A.  165.  See 
"Judicial  Sales,"  Dec.  Dig.  (Key-No.)  §  20;  Cent.  Dig.  §  44. 

3 «  Stuart  v.,Gay,  127  U.  S.  518,  8  Sup.  Ct.  1279/32  L.  Ed.  191; 
Camden  v.  Mayhew,  329  U.  S.  73,  9  Sup.  Ct.  246,  32  L.  Ed.  60&  See 
"Judicial  Sales,"  Dec.  Dig.  (Key-No.)  §  28;  Cent.  Dig.  §  55. 


§    169)  THE    DECBEE  461 

the  court  may  set  the  sale  aside.  But  while  it  has  this 
power,  it  is  reluctant  to  use  it,  for  few  parties  would  at- 
tend judicial  sales  unless  they  have  some  assurance  that 
the  sale  will  be  a  finality.  Hence  mere  inadequacy  of  price 
is  not  sufficient  to  set  a  sale  aside,  unless  it  is  so  great  as 
to  shock  the  conscience;  but  it  may  result  in  the  court 
looking  into  the  facts  more  closely,  and  finding  other 
grounds  for  refusing  to  confirm  the  sale.37 

(&)  Enforcement  against  the  Parties  Themselves 

Equity  decrees  are  not  only  for  the  sale  of  property,  but 
frequently  for  the  purpose  of  compelling  some  specific  act 
by  the  parties  themselves.     Hence,  in  enforcing  such  or 
ders,  equity  must  have  some  power  to  proceed  against  the 
parties  personally.     This  is  provided  by  equity  rule  8. 

It  may  Order  Conveyances  by  the  Party,  or  the  Delivery  up 
of  Deeds  or  Other  Documents 

Where  a  part  of  the  property  is  within  the  jurisdiction 
of  the  court,  it  may  transfer  the  title  not  only  to  the  part 
within  its  jurisdiction,  but  also  to  that  part  without  it,  by 
ordering  a  master  to  make  a  deed  to  the  property  or  by 
compelling  the  parties  before  the  court  to  make  the  proper 
conveyances.38 

In  this  respect  the  federal  courts  have  such  an  advantage 
over  the  local  tribunals  that  the  large  railway  foreclosures 
generally  find  their  way  into  the  former  courts.  By  means 
of  their  jurisdiction  over  the  parties,  ancillary  bills  and 

87  SCHROEDER  v.  YOUNG,  161  U.  S.  334,  16  Sup.  Ct  512,  40  L. 
Ed.  721 ;  Magann  v.  Segal,  92  Fed.  252,  34  C.  C.  A.  323.  See  "Judi- 
cial Sales,"  Dec.  Dig.  (Key-No.)  §§  39,  1,0;  Cent.  Dig.  §§  77,  78. 

ss  MULLER  v.  DOWS,  94  U.  S.  444,  24  L.  Ed.  207;  Central  Trust 
€o.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.  (C.  C.)  29  Fed.  618;  Boston  Safe 
Deposit  &  Trust  Co.  v.  Bankers'  &  Merchants'  Telegraph  Co.  (C.  C.) 
36  Fed.  289 ;  Woodbury  v.  Allegheny  &  K.  R.  Co.  (C.  C.)  72  Fed.  371, 
Compare  Fall  v.  Eastin,  215  U.  S.  1,  30  Sup.  Ct.  3,  54  L.  Ed.  65,  23 
L.  R.  A.  (N.  S.)  924,  17  Ann.  Cas.  853;  Jones  v.  Byrne  (C.  C.)  149 
Fed.  457.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  263;  Cent.  Dig.  §  799; 
"Judgment,"  Dec.  Dig.  (Key-No.)  §  818. 


462  PROCEDURE ORIGINAL   JURISDICTION  (Ch.  20 

the  extra  territorial  powers  of  receivers  under  section  56 
of  the  Judicial  Code,  they  can  act  more  promptly,  and  with- 
in territory  unknown  to  the  local  tribunals. 

Compelling  Obedience  to  Order 

The  federal  courts  will  not  only  order  conveyances,  but 
they  have  summary  means  of  compelling  obedience  to  their 
orders.  Under  rule  8,  if  the  defendant  can  be  found,  a 
writ  of  attachment  will  be  issued  against  him,  under  which 
he  will  be  held  until  he  complies  with  the  requirements  of 
the  court.  If  he  cannot  be  found,  a  writ  of  sequestration 
may  issue  against  his  property,  as  a  means  of  compelling 
obedience.  And  under  the  provisions  of  rule  9  a  writ  of 
assistance  will  lie  to  compel  the  delivery  of  possession. 
This  writ  is  a  proper  means  of  putting  a  purchaser  at  a 
mortgage  or  other  foreclosure  sale  in  possession  of  the 
property  purchased.39 

An  ancillary  bill  may  also  be  used  for  this  purpose  where 
a  writ  of  assistance  is  unavailing.40 

Under  rule  8,  if  the  orders  of  the  court  are  not  complied 
with,  it  may  appoint  some  other  person  to  perform  the  act 
for  and  at  the  cost  of  the  disobedient  party. 

A  court  will  also  by  its  process  compel  restitution  of 
property  to  the  proper  party.  For  instance,  where  a  low- 
er court  decided  in  favor  of  one  party,  and  the  case  was 
afterwards  reversed,  it  was  held  that  the  lower  court  could 
compel  the  party  who  had  meanwhile  collected  the  money 
to  pay  it  back,  although  the  ground  of  reversal  was  lack 
of  jurisdiction  in  the  lower  court,  for  it  retained  at  least 
enough  jurisdiction  to  undo  the  wrong  that  it  had  done.41 

so  Terrell  v.  Allison,  21  Wall.  289,  22  L.  Ed.  634.  See  "Equity," 
Dec.  Dig.  (Key-No.)  §  489;  Cent.  Dig.  §  1056. 

40  ROOT  v.  WOOL  WORTH,  150  U.  S.  401,  14  Sup.  Ct.  136,  37  L, 
Ed.  1123;  Alton  Water  Co.  v.  Brown,  166  Fed.  840,  92  C.  C.  A.  598. 
See  "Equity,"  Dec.  Dig.  (Key-No.)  §  437;  Cent.  Dig.  §§  1053,  1054. 

41  Northwestern  Fuel  Co.  v.  Brock,  139  U.  S.  216,  11  Sup.  Ct.  523, 
35  L.  Ed.  151.    See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  1208; 


§  170)  THE  DECREE  4C3 


SAME— REOPENING  OF  DECREE 

170.  Decrees  may  be  reopened  on  motion,  by  petition  for 
rehearing,  and  by  bill  of  review,  according  to  the 
nature  of  the  grounds  on  which  application  is 
made. 

Equity  rule  72  permits  the  correction  of  clerical  errors 
in  decrees  at  any  time  before  the  close  of  the  term  at  which 
final  decree  is  rendered,  when  the  matter  is  brought  to  the 
attention  of  the  court  by  petition,  and  in  such  case  a  re- 
hearing is  not  necessary. 

Equity  rule  69  provides  for  the  case  of  special  rehearings, 
and  is  as  follows:  "Every  petition  for  a  rehearing  shall 
contain  the  special  matter  or  cause  on  which  such  rehear- 
ing is  applied  for,  shall  be  signed  by  counsel,  and  the  facts 
therein  stated,  if  not  apparent  on  the  record,  shall  be  veri- 
fied by  the  oath  of  the  party,  or  by  some  other  person.  No 
rehearing  shall  be  granted  after  the  term  at  which  the  final 
decree  of  the  court  shall  have  been  entered  and  recorded, 
if  an  appeal  lies  to  the  circuit  court  of  appeals  or  the  Su- 
preme Court.  But  if  no  appeal  lies,  the  petition  may  be 
admitted  at  any  time  before  the  end  of  the  next  term  of  the 
court,  in  the  discretion  of  the  court."  42 

It  is  not  sufficient  merely  to  file  a  petition  during  the 
term  named  by  the  above  rule.  Some  action  upon  the  pe- 
tition must  be  taken  by  the  court  in  order  to  preserve  the 
rights  of  the  parties.43 

Cent.  Dig.  §§  4701-4709;  "Equity,"  Dec.  Dig.  (Key-No.)  §  426;  Cent. 
Dig.  §§  999,  1000. 

42  MOELLE  v.  SHERWOOD,  148  U.  S.  21,  13  Sup.  Ct  426,  37  L. 
Ed.  350.     See  "Equity,"  Dec.  Dig.   (Key-No.)  §   480;  Cent.  Dig.  §§ 
1034-1047. 

43  Graham  v.  Swayne,  109  Fed.  366,  48  C.  C.  A.  411.    See  "Equi 
ty,"  Dec.  Dig.  (Key-No.)  §  430;  Cent.  Dig.  §§  1084-1047. 


464  PROCEDURE — ORIGINAL   JURISDICTION  (Ch.  20 

Motion 

Under  some  circumstances,  decrees  may  be  reopened  on 
motion.  For  instance,  if  the  judge  has  been  deceived  by 
counsel  into  entering  an  order  which  he  did  not  intend  to 
enter,  it  may  be  set  aside  on  motion.44 

This  method  may  also  be  resorted  to  for  the  purpose  of 
introducing  new  evidence  where  the  circumstances  of  the 
case  permit  such  introduction.45 

But  such  motion  will  not  be  entertained  after  the  close 
of  the  term.46 

Bill  of  Review 

A  common  method  of  avoiding  the  effect  of  final  decrees 
is  by  bill  of  review.  This  method,  however,  only  lies  for 
substantial  error  of  law  apparent  on  the  face  of  the  record, 
or  for  new  matter  arising  since  the  entry  of  tne  decree,  or 
for  newly  discovered  evidence  which  could  not  have  been 
found  and  produced  by  the  use  of  reasonable  diligence  be- 
fore the  entry  of  the  decree.47 

A  bill  of  review  for  errors  of  law  will  not  lie  at  any  time 
after  the  period  prescribed  for  an  appeal,  for  the  reason 
that  there  must  be  some  finality  to  litigation,  and  the  adop- 


44  U.  S.  v.  Williams,  67  Fed.  384,  14  C.  C.  A.  440.    See  "Equity," 
Dec.  Dig.  (Key-No.)  §  480;  Cent.  Dig.  §§  1034-1047. 

45  Campbell  Printing-Press  &  Mfg.  Co.  v.  Harden  (C.  C.)  70  Fed. 
339.    The  court  may  do  this  during  the  term  though  an  appeal  has 
been  taken,  and  may  request  the  return  of  the  record  from  the  ap- 
pellate court  for  the  purpose.     Nutter  v.  Mossberg  (C.  C.)  118  Fed. 
168.     See  "Equity,"  Dec.  Dig.  (Key-No.)  §  430;  Cent.  Dig.  §§  1034- 
1047. 

46  McGregor  v.  Vermont  Loan  &  Trust  Co.,  104  Fed.  709,  44  C.  C. 
A.  146.    See  "Equity,"  Dec.  Dig.  (Key-No.)  §  430;  Cent.  Dig.  §§  1034- 
1047. 

47  Hill  v.  Phelps,  101  Fed.  650,  41  C.  C.  A.  56;  Acord  v.  Western 
Pocahontas  Corporation  (C.  C.)  156  Fed.  989;  Id.,  174  Fed.  1019,  98 
C.  C.  A.  625 ;  Taylor  v.  Easton,  180  Fed.  363,  103  C.  C.  A.  509.    See 
'^Equity,"  Dec.  Dig.  (Key-No.)  §§  442,  445,  452;  Cent.  Dig.  §§  1065- 
1070,  1078-1094. 


§    170)  THE   DECEEE  465 

tion  of  the  statutory  limitations  in  regard  to  appeals  fur- 
nishes a  good  point  at  which  to  draw  the  line.48 

The  above  rules  in  relation  to  reopening  decrees  relate, 
of  course,  to  final  decrees.  Interlocutory  decrees  are  al- 
ways considered  in  the  breast  of  the  court. 

"Blythe  Co.  v.  Hlnckley,  111  Fed.  827,  49  C.  0.  A.  647;  Home 
St.  Ry.  Co.  v.  Lincoln,  162  Fed.  133,  89  C.  C.  A.  133.    See  "Equity," 
Dec.  Dig.  (Key-No.)  f  452;  Cent.  Dig.  §§  1101-1109. 
HUGHES  FED.PB.(2o  ED.)— 30 


466  APPELLATE   JURISDICTION  (Ch.  21 


CHAPTER  XXI 

APPELLATE  JURISDICTION— THE  CIRCUIT  COURT  OF 
APPEALS. 

171.  The  Appellate  Courts. 

172.  The  Circuit  Court  of  Appeals — Its  Organization. 

173.  Jurisdiction  of  the  Circuit  Court  of  Appeals. 

174.  Same — Cases  Excepted  from  the  Jurisdiction  of  the  Circuit 

Court  of  Appeals. 

175.  Same — Instances  of  the  Jurisdiction. 

176.  Same — Cases  in  which  the  Decision  of  the  Circuit  Court  of 

Appeals  is  Final. 

177.  Same — Power  of  Circuit  Court  of  Appeals  to  Issue  Auxiliary 

Writs. 


THE  APPELLATE  COURTS 

171.  The  federal  appellate  jurisdiction  is  vested  in  the  Su- 
preme Court  of  the  United  States  and  the  circuit 
courts  of  appeals  for  the  various  circuits,  and  is  di- 
vided between  the  latter  class  and  the  Supreme 
Court  in  accordance  with  regulations  fixed  by  law. 

THE  APPELLATE  JURISDICTION  AND  ITS  DISTRIBUTION 
AMONG  THE  APPELLATE  COURTS 

(1)  Original  Organisation 

Until  1891  the  appellate  jurisdiction  of  the  federal  courts 
— leaving  out  of  view  the  courts  of  local  interest,  like  those 
of  the  District  of  Columbia — was  vested  in  the  circuit  court 
and  in  the  Supreme  Court.  The  appellate  jurisdiction  of 
the  former  was  restricted  to  a  few  special  classes  of  cases, 
while  that  of  the  latter  constituted  the  great  mass  of  liti- 
gation that  found  its  way  into  the  federal  courts.  This 
system  worked  satisfactorily  until  the  beginning  of  the 
Civil  War.  Up  to  that  time  a  small  limit  as  to  amount  was 
all  that  was  necessary  to  enable  the  Supreme  Court  to 


§   171)  THE  APPELLATE  COUKTS  467 

handle  the  appellate  business  which  had  been  entrusted 
to  it.  There  were  many  cases,  however,  as  to  which  there 
was  no  appeal  at  all — some  of  them  of  great  importance, 
like  criminal  cases. 

The  growth  of  the  country,  and  especially  the  increasing 
importance  of  the  federal  courts  due  to  the  new  questions 
springing  out  of  the  Civil  War,  brought  to  pass  at  its  close 
that  the  Supreme  Court  could  not  attend  to  the  appellate 
jurisdiction  which  had  been  conferred  upon  it.  Long  de- 
lays became  inevitable,  with  their  attendant  inconvenience 
to  the  litigants.  This  was  the  subject  of  much  discussion, 
and  many  plans  of  relief,  but  nothing  definite  was  accom- 
plished until  1875,  when  an  attempt  was  made  to  relieve  the 
Supreme  Court  by  raising  the  limit  necessary  in  appeals  to 
five  thousand  dollars,  instead  of  two  thousand,  as  had  been 
the  previous  amount.  This  temporary  expedient,  however, 
failed  of  its  purpose,  for  not  only  had  the  volume  of  litiga- 
tion immensely  increased,  but  its  character.  The  result 
was  that  the  Supreme  Court,  in  spite  of  its  struggles  against 
the  ever  accumulating  mass  of  appeals,  found  itself  hope- 
lessly in  arrears,  so  that  it  required  from  three  to  five  years 
to  secure  a  hearing  of  an  appeal.  This  was  offering  a  pre- 
mium to  delays,  and  put  it  in  the  power  of  litigants  to 
force  disadvantageous  compromises  on  the  successful  par- 
ty, or  keep  him  out  of  the  fruits  of  his  litigation,  even  in 
cases  where  the  appeal  had  no  merit.  The  discussion  of 
the  proper  measure  of  relief  continued,  but  resulted  in 
nothing  tangible  until  1891. 

(2)  Present  Organisation 

By  the  act  of  March  3,  1891, l  the  whole  system  of  appeals 
was  remodeled,  the  jurisdiction  formerly  vested  in  the  ap- 
pellate courts  redistributed,  and  appeals  given  in  classes 
where  no  appeal  had  been  available.  The  object  of  the 
act  is  expressed  in  American  Const.  Co.  v.  Jacksonville, 

i  26  Stat.  826,  c.  517  (U.  S.  Comp.  St  1901,  p.  547). 


468  APPELLATE   JURISDICTION  (Ch.  21 

T.  &  K.  W.  Ry.  Co.2  In  it  the  Supreme  Court  said :  "The 
primary  object  of  this  act,  well  known  as  a  matter  of  pub- 
lic history,  manifest  on  the  face  of  the  act,  and  judicially 
declared  in  the  leading  cases  under  it,  was  to  relieve  this 
court  of  the  overburden  of  cases  and  of  controversies,  aris- 
ing from  the  rapid  growth  of  the  country,  and  the  steady 
increase  of  litigation;  and,  for  the  accomplishment  of  this 
object,  to  transfer  a  large  part  of  its  appellate  jurisdiction 
to  the  circuit  courts  of  appeals  thereby  established  in  each 
judicial  circuit,  and  to  distribute  between  this  court  and 
those,  according  to  the  scheme  of  the  act,  the  entire  appel- 
late jurisdiction  from  the  circuit  and  district  courts  of  the 
United  States.  *  *  *  The  act  has  uniformly  been  so 
construed  and  applied  by  this  court  as  to  promote  its  gen- 
eral purpose  of  lessening  the  burden  of  litigation  in  this 
court,  transferring  the  appellate  jurisdiction  in  large  classes 
of  cases  to  the  circuit  court  of  appeals,  and  making  the 
judgments  of  that  court  final,  except  in  extraordinary 
cases." 

The  scheme  of  this  act  was  to  establish  in  each  judicial 
circuit  a  local  appellate  court,  to  be  called  the  United  States 
circuit  court  of  appeals  of  that  circuit,  and  to  distribute  the 
appellate  jurisdiction  between  these  local  courts  and  the 
Supreme  Court ;  conferring  upon  the  former  the  great  mass 
of  ordinary  litigation,  and  reserving  for  the  latter  questions 
of  general  or  national  interest,  with  certain  provisions  in- 
tended to  prevent  divergence  of  decisions  in  the  different 
circuits. 

The  act  with  some  changes  since  its  passage,  now  con- 
stitutes the  sixth  chapter  of  the  Judicial  Code,  covering 
sections  116-135,  inclusive. 

2  148  U.  S.  372,  382,  13  Sup.  Ct.  758,  37  L.  Ed.  486.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  401;  Cent.  Dig.  §  1094. 


§    172)      CIRCUIT  COURT  OF  APPEALS — ORGANIZATION  469 

THE  CIRCUIT  COURT  OF  APPEALS— ITS 
ORGANIZATION 

172.  Each  judicial  circuit  has  an  appellate  court  called  the 
Circuit  Court  of  Appeals.  The  judges  who  may 
hold  this  court  are  the  Supreme  Court  justice  for 
the  particular  circuit,  the  circuit  judges  for  the 
circuit  (and  certain  others  by  special  assignment), 
and  the  district  judges  for  the  circuit  when  the 
circuit  justice  or  circuit  judges  cannot  sit;  any  two 
of  these  judges  constituting  a  quorum.  But  no 
judge  who  sat  on  the  trial  court  for  the  original 
trial  of  a  cause  or  question  can  sit  on  the  appel- 
late court  for  the  trial  of  the  appeal  in  that  cause 
or  question. 

Prior  to  this  act,  the  judges  competent  to  hold  the  cir- 
cuit courts,  in  addition  to  the  district  judges,  were  the 
Supreme  Court  justice  assigned  to  that  special  circuit,  and 
the  circuit  judge  for  that  circuit.  The  act  added  a  new  cir- 
cuit judge  to  each  circuit,  on  the  idea  that  the  court  was, 
in  the  first  instance,  to  be  composed  of  the  circuit  justice 
for  that  circuit  and  the  two  circuit  judges  of  the  circuit ; 
but  as  it  was  realized  that  the  attendance  of  the  circuit 
justices  would  necessarily  be  uncertain,  and,  further,  that 
the  circuit  judges  would  be  frequently  disqualified  by  rea- 
son of  having  sat  in  the  circuit  court,  it  was  also  provided 
that  the  district  judges  comprised  within  that  circuit  should 
be  competent  to  sit  upon  this  local  appellate  court.  Two 
judges,  however,  constituted  a  quorum.  Thus  the  court  is 
a  very  changeable  one — a  fact  which  has  not  been  to  its 
advantage,  as  unity  of  practice  and  decision  is  much  harder 
with  a  changing  court  than  with  one  composed  all  the  time 
of  the  same  members. 

Section  118  of  the  Judicial  Code  increased  the  number 
of  circuit  judges,  except  in  the  fourth  circuit.  And  the  five 


470  APPELLATE   JURISDICTION  (Ch.  21 

^v 

new  circuit  judges  appointed  for  the  commerce  court  may 
also  be  assigned  to  the  circuit  courts  of  appeals  under  sec- 
tion 201  of  the  Judicial  Code. 

The  district  judges  are  only  called  to  sit,  under  the  pro- 
visions of  the  third  section  of  the  act,  when  the  associate 
justice  and  the  circuit  judges  are  not  all  present,  and  the 
district  judges  in  such  case  may  be  called  either  by  general 
or  particular  assignment.  The  third  section,  however,  pro- 
vides that  no  justice  or  judge  before  whom  a  cause  or  ques- 
tion may  have  been  tried  or  heard  in  a  district  court  or  ex- 
isting circuit  court  shall  sit  on  the  trial  or  hearing  of  such 
cause  or  question  in  the  circuit  court  of  appeals. 

In  Moran  v.  Dillingham  3  the  Supreme  Court  strongly 
intimates  that  under  this  provision  a  judge  who  has  sat  in 
the  case  is  disqualified  in  the  appellate  court  from  hearing 
the  case  or  any  part  of  it;  and,  as  the  object  of  the  act  is 
to  furnish  an  appellate  court  of  judges  absolutely  uncom- 
mitted, this  would  certainly  seem  to  be  its  natural  con- 
struction. And  it  holds  that  a  judge  who  has  heard  the 
case  on  its  merits  cannot  sit  in  the  appellate  court  on  any 
question  involved  in  it,  and  that  a  judge  who  has  heard 
any  single  question  in  the  case  cannot  sit  in  the  appellate 
court  on  the  hearing  of  that  question,  or  any  other  question 
immediately  dependent  upon  it,  if  the  effect  of  such  appeal 
may  be  that  the  case  will  be  reversed,  regardless  of  the 
merits  of  the  decision. 

s  174  U.  S.  153,  157,  19  Sup.  Ct.  620,  43  L.  Ed.  930.  See,  also,  Rex- 
ford  v.  Brunswick-Balke-Collender  Co.,  228  U.  S.  339,  33  Sup.  Ct 

515,  57  L.  Ed. ;    William  Cramp  &   Sons  Ship  &   Engine  Bldg. 

Co.  v.  International  Curtiss  Marine  Turbine  Co.,  228  U.  S.  645,  33 
Sup.  Ct.  722,  57  L.  Ed.  — .  See  "Judges,"  Dec.  Dig.  (Key-No.)  §  48; 
Cent.  Dig.  §§  220,  221. 


§   173)      JUBISDICTION  OF  CIRCUIT  COURT  OF   APPEALS         471 


JURISDICTION  OF  THE  CIRCUIT  COURT  OF  AP- 
PEALS 

173.  All  final  decisions  of  the  district  courts,  except  those 
special  jurisdictional,  international,  and  constitu- 
tional questions  intrusted  to  the  Supreme  Court, 
are  reviewable  in  the  circuit  court  of  appeals. 

The  main  jurisdiction  of  the  court  is  denned  by  section 
128  of  the  Judicial  Code  as  follows: 

"The  circuit  courts  of  appeals  shall  exercise  appellate 
jurisdiction  to  review  by  appeal  or  writ  of  error  final  de- 
cisions in  the  district  courts,  including  the  United  States 
district  court  for  Hawaii,  in  all  cases  other  than  those  in 
which  appeals  and  writs  of  error  may  be  taken  direct  to  the 
Supreme  Court,  as  provided  in  section  two  hundred  and 
thirty-eight,  unless  otherwise  provided  by  law ;  and,  except 
as  provided  in  sections  two  hundred  and  thirty-nine  and 
two  hundred  and  forty,  the  judgments  and  decrees  of  the 
circuit  courts  of  appeals  shall  be  final  in  all  cases  in  which 
the  jurisdiction  is  dependent  entirely  upon  the  opposite  par- 
ties to  the  suit  or  controversy  being  aliens  and  citizens  of 
the  United  States,  or  citizens  of  different  states;  also  in 
all  cases  arising  under  the  patent  laws,  under  the  copyright 
laws,  under  the  revenue  laws,  and  under  the  criminal  laws, 
and  in  admiralty  cases." 

Sections  239  and  240,  alluded  to  above,  were  part  of  the 
original  act  of  1891,  but  have  been  carried  into  the  chapter 
of  the  Judicial  Code  devoted  to  the  Supreme  Court.  As 
they  are  necessary  to  understand  the  subject,  they  are  set 
out  in  full,  as  follows : 

"Sec.  239.  In  any  case  within  its  appellate  jurisdiction, 
as  defined  in  section  one  hundred  and  twenty-eight,  the  cir- 
cuit court  of  appeals  at  any  time  may  certify  to  the  Supreme 
Court  of  the  United  States  any  questions  or  propositions 
of  law  concerning  which  it  desires  the  instruction  of  that 


472  APPELLATE   JURISDICTION  (Ch.  21 

court  for  its  proper  decision;  and  thereupon  the  Supreme 
Court  may  either  give  its  instruction  on  the  questions  and 
propositions  certified  to  it,  which  shall  be  binding  upon  the 
circuit  court  of  appeals  in  such  case,  or  it  may  require  that 
the  whole  record  and  cause  be  sent  up  to  it  for  its  consid- 
eration, and  thereupon  shall  decide  the  whole  matter  in 
controversy  in  the  same  manner  as  if  it  had  been  brought 
there  for  review  by  writ  of  error  or  appeal. 

"Sec.  240.  In  any  case,  civil  or  criminal,  in  which  the 
judgment  or  decree  of  the  circuit  court  of  appeals  is  made 
final  by  the  provisions  of  this  title,  it  shall  be  competent  for 
the  Supreme  Court  to  require,  by  certiorari  or  otherwise, 
upon  the  petition  of  any  party  thereto,  any  such  case  to  be 
certified  to  the  Supreme  Court  for  its  review  and  determi- 
nation, with  the  same  power  and  authority  in  the  case  as  if 
it  had  been  carried  by  appeal  or  writ  of  error  to  the  Su- 
preme Court." 

No  Monetary  Amount 

As  to  the  limits  of  this  jurisdiction,  it  should  be  observed 
in  the  first  place  that  there  is  no  limit  as  to  amount.  The 
Paquete  Habana,4  which  reviews  the  earlier  statutes  as  to 
the  amount  required  for  jurisdiction,  so  holds.  The  reason 
is  obvious.  Under  the  present  federal  legislation  nearly 
all  the  litigation  in  the  district  court  has  a  limitation  of  $3,- 
000,  applicable  to  the  court  of  first  instance,  and  that  is 
sufficiently  high  for  purposes  of  an  appeal.  Cases  involv- 
ing less  than  that  amount  are  self-corrective,  as  appeals  are 
not  often  taken  by  litigants,  on  account  of  the  expense, 
where  the  amount  involved  is  small. 

Subject-Matter 

Now,  as  to  the  subject-matter  of  the  appellate  jurisdic- 
tion, it  covers  the  great  mass  of  litigation;  appeals  to  that 
court  being  the  rule,  and  those  to  the  Supreme  Court 


*  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed.  320.  See,  also,  Kirby 
v.  American  Soda  Fountain  Co.,  194  U.  S.  141,  24  Sup.  Ct.  619,  4S 
L.  Ed.  911.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405. 


§    174)      JURISDICTION   OF  CIRCUIT  COURT  OF  APPEALS         473 

the  exception.  The  statute  above  quoted  uses  the  language 
that  the  appeal  shall  exist  "in  all  cases  other  than  those  in 
which  appeals  and  writs  of  error  may  be  taken  direct  to  the 
Supreme  Court  as  provided  in  section  two  hundred  and 
thirty-eight,  unless  otherwise  provided  by  law" ;  and  it  has 
been  held  that  this  latter  clause  was  a  saving  clause  intend- 
ed to  keep  in  force  acts  contemporaneous  with  this  act  or 
subsequent  thereto,  and  not  intended  to  apply  to  previous 
provisions  as  to  appeals,  as  that  construction  would  nullify 
the  whole  act.8 


SAME— CASES  EXCEPTED  FROM  THE  JURISDIC- 
TION OF  THE  CIRCUIT  COURT  OF  APPEALS 

174.  Jurisdictional,  prize,  and  constitutional  questions  are 
intrusted  to  the  Supreme  Court,  though  the  circuit 
courts  of  appeals  may  acquire  cognizance  of  cases 
in  these  classes  when  questions  included  therein 
are  connected  in  the  case  with  other  questions  over 
which  the  latter  court  has  jurisdiction. 

The  statute  above  quoted  excludes  from  the  jurisdiction 
of  the  circuit  court  of  appeals  those  cases  which  may  be 
taken  direct  to  the  Supreme  Court  under  section  238  of  the 
Judicial  Code. 

That  section  is  as  follows : 

"Appeals  and  writs  of  error  may  be  taken  from  the  dis- 
trict courts,  including  the  United  States  district  court  for 
Hawaii,  direct  to  the  Supreme  Court  in  the  following  cases : 
(a)  In  any  case  in  which  the  jurisdiction  of  the  court 
is  in  issue,  in  which  case  the  question  of  jurisdiction  alone 

B  Louisville  Public  Warehouse  Co.  v.  Collector  of  Customs,  49  Fed. 
561,  1  C.  C.  A.  371;  The  Paquete  Habana,  175  U.  S.  677,  683,  20 
Sup.  Ct.  290,  44  L.  Ed.  320.  See  "Courts,"  Dec.  Dig.  (Key-No.)  { 
405;  Cent.  Dig.  §§  '1099-1102. 


474  APPELLATE    JURISDICTION  (Ch.21 

shall  be  certified  to  the  Supreme  Court  from  the  court  be- 
low for  decision. 

(b)  From    the    final    sentences    and    decrees    in    prize 
causes. 

(c)  In  any  case  that  involves  the  construction  or  ap- 
plication of  the  Constitution  of  the  United  States. 

(d)  In  any  case  in  which  the  constitutionality  of  any 
law  of  the  United  States,  or  the  validity  or  construction  of 
any  treaty  made  under  its  authority   is  drawn  in  question. 

(e)  And  in  any  case  in  which  the  constitution  or  law  of 
a  state  is  claimed  to  be  in  contravention  of  the  Constitution 
of  the  United  States." 

Thus  sections  128  and  238  of  the  Judicial  Code  distribute 
the  jurisdiction  between  the  circuit  courts  of  appeals  and 
the  Supreme  Court  on  the  general  idea  of  conferring  all  the 
jurisdiction  upon  the  circuit  court  of  appeals,  except  juris- 
dictional,  constitutional,  or  international  questions. 

Instances  of  Cases  Cognisable  by  the  Circuit  Court  of  Appeals 
Questions  of  jurisdiction  of  the  trial  court  are  taken  to 
the  Supreme  Court  by  certificate.  The  question  what  con- 
stitutes jurisdiction  is  well  expressed  by  Judge  Brown  in 
an  admiralty  case.6  In  it  he  said:  "Jurisdiction  is  the 
power  to  adjudicate  a  case  upon  the  merits,  and  dispose  of 
it  as  justice  may  require.  As  applied  to  a  suit  in  rem  for 
the  breach  of  a  maritime  contract,  it  presupposes,  first,  that 
the  contract  sued  upon  is  a  maritime  contract;  and,  second, 
that  the  property  proceeded  against  is  within  the  lawful 
custody  of  the  court.  These  are  the  only  requirements 
necessary  to  give  jurisdiction.  Proper  cognizance  of  the 
parties  and  subject-matter  being  conceded,  all  other  mat- 
ters belong  to  the  merits." 

e  The  Resolute,  168  U.  S.  437,  18  Sup.  Ct.  112,  42  L.  Ed.  533. 
Whether  the  giving  of  a  forthcoming  bond  in  an  attachment  case 
waives  a  special  appearance  and  puts  defendant  in  court  is  a  ques- 
tion of  jurisdiction.  Olds  v.  Herman  H.  Hettler  Lumber  Co.,  195 
Fed.  9,  115  C.  C.  A.  91.  See  "Courts,"  Dec,  Dig.  (Key-No.)  §§  1-5; 
Cent.  Dig.  §§  1-12. 


§    174)      JURISDICTION   OF  CIRCUIT  COURT   OF   APPEALS        475 

Accordingly  he  held  that  the  question  whether  a  seaman 
had  a  lien  upon  a  vessel  for  wages  accrued  while  a  receiver 
was  operating  it,  and  whether  he  could  assert  such  lien 
against  the  purchaser  of  the  vessel  after  it  had  left  the  cus- 
tody of  the  receiver,  was  not  a  question  of  jurisdiction. 
So,  too,  the  question  whether  the  defendant  in  an  involun- 
tary bankruptcy  proceeding  was  engaged  chiefly  in  farm- 
ing is  not  a  question  of  jurisdiction,  but  a  defense  going  to 
the  merits.7  So,  too,  in  a  proceeding  by  contempt,  the 
question  whether  the  facts  shown  made  out  a  case  of  con- 
tempt is  a  question  that  went  to  the  merits,  and  not  to  the 
jurisdiction,  for  the  court  had  admitted  jurisdiction  over  the 
person  and  over  the  subject-matter  of  contempts.8  And 
the  jurisdiction  alluded  to  in  this  act  means  the  jurisdiction 
in  the  case  from  which  the  appeal  is  taken,  not  the  jurisdic- 
tion in  another  case  out  of  which  this  case  grew.9  So,  too, 
"jurisdiction"  is  not  synonymous  with  "authority."  For 
instance,  a  receiver  filed  a  petition  for  the  settlement  of  his 
accounts,  and  the  payment  of  certain  costs  and  expenses, 
which  petition  was  denied.  The  contention  that  the  court 
had  no  authority  to  require  him  to  pay  these  costs  and  ex- 
penses was  held  not  to  be  a  jurisdictional  question.10 

The  jurisdiction  referred  to  in  this  connection  means  the 
jurisdiction  of  the  court  as  a  federal  court,  not  the  general 
jurisdiction  of  the  court  as  a  court.11  Hence,  where  the  de- 
fense to  a  suit  in  equity  is  that  the  court  had  no  jurisdiction 


T  Denver  First  Nat.  Bank  v.  Klug,  186  U.  S.  202,  22  Sup.  Ct.  899, 
46  L.  Ed.  1127.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  1,  385,  405. 

s  O'Neal  v.  U.  S.,  190  U.  S.  36,  23  Sup.  Ct.  776,  47  L.  Ed.  945.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  1;  Cent.  Dig.  §§  1-10. 

»  Ex  parte  Lennon,  150  U.  S.  393,  14  Sup.  Ct.  123,  37  L.  Ed.  1120. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  1;  Cent.  Dig.  §§  1-10. 

10  Chapman  v.  Atlantic  Trust  Co.,  119  Fed.  257,  56  C.  C.  A.  61. 
See  "Courts"  Dec.  Dig.  (Key-No.)  §  1;  Cent.  Dig.  §§  1-10. 

nU.  S.  v.  Larkin,  208  U.  S.  333,  28  Sup.  Ct.  417,  52  L.  Ed.  517; 
Fidelity  Trust  Co.  v.  Gaskell,  195  Fed.  865,  115  C.  C.  A.  527.  See 
"Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  IT;  Cent.  Dig.  §  61; 
"Courts,"  Dec.  Dig.  (Key-No.)  §  405. 


476  APPELLATE  JURISDICTION  (Ch.  21 

because  there  was  an  adequate  remedy  at  law,  but  there 
was  no  question  of  the  jurisdiction  as  a  federal  court,  this 
is  not  such  a  question  of  jurisdiction  as  goes  to  the  Supreme 
Court  under  this  section,  but  the  appeal  in  such  case  would 
go  to  the  circuit  court  of  appeals.12 

Same — Jurisdiction  of  Circuit  Court  of  Appeals  When  Juris- 

dictional  Questions  Are  Involved 

Notwithstanding  the  provision  of  section  238  that  the  ap- 
peal shall  be  taken  to  the  Supreme  Court  when  the  jurisdic- 
tion of  the  court  is  in  issue,  there  are  many  circumstances 
under  which  the  circuit  court  of  appeals  can  consider  juris- 
dictional  questions.  This  must  first  be  discussed  in  connec- 
tion with  appeals  by  defendant.  Suppose  that  in  such  a 
case  the  defendant  pleads  to  the  jurisdiction,  and  his  plea  is 
decided  against  him.  He  cannot  then  appeal  to  the  Su- 
preme Court,  for  that  would  not  be  a  final  decree.  The 
court  would  overrule  his  plea,  and  proceed  with  the  case. 
If  it  is  finally  decided  against  him  on  the  merits,  then  he 
has  an  election  either  to  take  the  jurisdictional  question 
alone  to  the  Supreme  Court,  and  have  it  decided  there,  or 
to  appeal  the  whole  case  from  the  final  decree  on  the  merits 
to  the  circuit  court  of  appeals.  In  such  case,  the  latter, 
having  acquired  jurisdiction  by  reason  of  the  appeal  of 
the  whole  case,  can  consider  the  question  of  jurisdiction  of 
the  lower  court,  for  such  question  is  necessarily  involved  in 
disposing  of  the  whole  case.  In  such  case,  however,  it  may, 
in  its  discretion,  certify  the  question  of  jurisdiction  up  to 
the  Supreme  Court  under  section  239  giving  it  the  right  to 
ask  the  instruction  of  the  Supreme  Court  on  any  question 
arising  in  a  case;  or  the  Supreme  Court  itself  may  issue  its 
writ  of  certiorari  to  the  circuit  court  of  appeals,  and  bring 
up  the  whole  case.13 

12  SMITH  v.  McKAY,  161  TL  S.  355,  16  Sup.  Ct.  490,  40  L.  Ed. 
731;  Blythe  v.  Hinckley,  173  U.  S.  501,  19  Sup.  Ct.  497,  43  L.  Ed. 
783 ;  Kansas  City  N.  W.  R.  Co.  v.  Zimmerman,  210  U.  S.  336,  28  Sup. 
Ct.  730,  52  L.  Ed.  1084.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405. 

v.  Roff,  141  U.  S.  661,  12  Sup.  Ct.  118,  35  L.  Ed.  893; 


§    174)      JURISDICTION   OF  CIRCUIT  COURT   OF   APPEALS         477 

The  question  of  jurisdiction  may  also  be  complicated  with 
other  questions  on  appeals  by  the  plaintiff,  and  under  cer- 
tain circumstances  the  circuit  court  of  appeals  can  consider 
such  a  question.  Suppose  the  trial  court  decides  that  it  has 
no  jurisdiction.  That  is  a  final  decree,  and  in  such  case  the 
plaintiff  must  go  straight  to  the  Supreme  Court  on  a  certifi- 
cate of  the  jurisdictional  question.  Suppose,  on  the  other 
hand,  that  the  lower  court  decides  in  favor  of  its  jurisdic- 
tion ;  that  the  case  proceeds  on  its  merits,  and  is  decided 
in  favor  of  the  defendant  on  the  merits.  In  such  case  the 
plaintiff  takes  the  whole  case  to  the  circuit  court  of  appeals, 
for  he  cannot  complain  of  a  decision  upholding  the  jurisdic- 
tion, and  his  only  ground  of  complaint  is  the  action  of  the 
court  on  the  merits.  In  such  case  the  circuit  court  of  ap- 
peals may,  in  its  discretion,  certify  the  question  of  jurisdic- 
tion to  the  Supreme  Court. 

Suppose,  again,  that  the  jurisdiction  is  sustained;  that 
the- case  goes  on  to  trial,  and  is  finally  decided  for  the  plain- 
tiff, but  for  a  less  amount  than  he  claims.  In  such  case,  if 
the  defendant  has  taken  an  appeal  to  the  circuit  court  of 
appeals,  the  plaintiff  can  take  a  cross-appeal  to  the  same 
court.  If  the  defendant  has  gone  to  the  Supreme  Court  on 
the  jurisdictional  question,  the  plaintiff  can  appeal  inde- 
pendently to  the  circuit  court  of  appeals ;  but  in  such  case 
the  latter  court  will  suspend  action  until  the  Supreme  Court 
has  decided  the  question  of  jurisdiction  on  the  defendant's 
appeal.14 

The  Supreme  Court  can  consider  the  question  of  juris- 
diction in  such  case  only  on  certificate,  and,  if  the  case  has 


U.  S.  v.  JAHN,  155  U.  S.  109,  15  Sup.  CL  39,  39  L.  Ed.  87;  Meeker 
v.  Lehigh  V.  K.  Co.,  183  Fed.  548,  106  C.  C.  A.  94.  Bee  "Courts," 
Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §  1108. 

i*U.  S.  v.  JAHN,  155  U.  S.  109,  15  Sup.  Ct  39,  39  L.  Ed.  87; 
Anglo-American  Provision  Co.  v.  Provision  Co.,  191  U.  S.  376,  24 
Sup.  Ct.  93,  48  L.  Ed.  228;  Morrisdale  Coal  Co.  v.  Pennsylvania  R. 
Co.,  183  Fed.  929,  106  C.  C.  A.  269.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  405;  Cent.  Dig.  §  1103. 


478  APPELLATE   JURISDICTION  (Ch.  21 

been  taken  to  the  circuit  court  of  appeals,  the  Supreme 
Court  will  not  consider  an  appeal,  though  it  would  other- 
wise have  jurisdiction  by  virtue  of  some  of  the  other  claus- 
es; for  the  policy  of  the  law  is  in  favor  of  only  one  appeal, 
and  it  will  not  permit  separate  appeals  to  the  circuit  court 
of  appeals  and  the  Supreme  Court.15 

Same — Course  of  Appeal  when  Other  Classes  of  Section  Are 

in  Issue 

The  only  class  of  the  section  which  requires  a  certificate 
taking  up  a  single  question  is  that  relating  to  jurisdiction. 
In  the  other  classes  named,  the  whole  case  goes  up.  Hence 
the  principles  which  regulate  the  course  of  appeal  in  these 
cases  are  a  little  different  from  those  already  discussed. 
In  the  first  place,  if  the  plaintiff's  own  pleading  shows  that 
the  case  turned  upon  any  of  the  questions  named  in  the  sec- 
tion— as,  for  instance,  a  federal  constitutional  question — 
the  appeal  must  go  to  the  Supreme  Court  alone.16  It  is, 
however,  frequently  the  case  that  the  jurisdiction  is  invoked 
in  the  first  place  on  one  ground,  and  that  questions  of  this 
character  subsequently  arise.  For  instance,  suppose  the 
plaintiff  bases  his  right  of  suit  in  the  first  instance  in  his 
pleadings  on  the  ground  of  diverse  citizenship.  In  such 
case,  under  section  128,  the  circuit  court  of  appeals,  if  that 
were  the  only  question  involved,  would  have  final  jurisdic- 
tion. But  suppose  the  defendant  in  such  case  raises  a  fed- 
eral constitutional  question  in  his  plea  or  answer,  or  such 
a  question  arises  in  some  subsequent  stage  of  the  case. 
Under  such  circumstances,  the  case  could  be  taken  to  the 
circuit  court  of  appeals,  because  the  original  ground  of  ju- 

is  ROBINSON  v.  CALDWELL,  165  TJ.  S.  359,  17  Sup.  Ct.  343,  41 
L.  Ed.  745.  Where  the  sole  question  decided  in  the  lower  court  is 
one  of  jurisdiction,  a  petition  for  a  writ  of  error  and  allowance 
of  same  on  that  sole  ground  is  equivalent  to  a  certificate.  TL  S.  v. 
Larkin,  208  U.  S.  333,  28  Sup.  Ct.  417,  52  L.  Ed.  517.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §§  385,  405. 

i6  Union  &  Planters'  Bank  v.  Memphis,  189  U.  S.  71,  23  Sup.  Ct. 
604,  47  L.  Ed.  712;  Spreckels  Sugar  Refining  Co.  v.  McClain,  192 
U.  S.  397,  24  Sup.  Ct.  376,  48  L.  Ed.  496.  See  "Courts,"  Dec.  Dig^ 
(Key-No.)  §  382;  Cent.  Dig.  §§  1019,  1020. 


§   175)      JURISDICTION   OF  CIRCUIT  COURT  OF  APPEALS         479 

risdiction  was  diverse  citizenship,  or  it  could  be  taken  first 
to  the  Supreme  Court,  if  this  subsequent  question  was  a 
pivotal  question  in  the  case,  but  the  litigant  cannot  do  both, 
one  appeal  being  his  limit.17  If,  however,  the  question  is 
a  different  one  from  those  enumerated  in  section  238 — as, 
for  instance,  a  case  turning  upon  conflicting  state  land 
grants — the  appeal  is  to  the  circuit  court  of  appeals  alone.18 
But  if  the  jurisdiction  in  the  first  instance  was  not  based 
solely  on  diverse  citizenship,  the  decision  in  the  circuit 
court  of  appeals  is  not  final.19  If  the  constitutional  ques- 
tion on  which  the  jurisdiction  of  the  trial  court  is  invoked 
is  decided  in  plaintiff's  favor,  but  the  main  case  against  him, 
he  must  appeal  to  the  circuit  court  of  appeals,  not  to  the 
Supreme  Court,  for  an  appeal  by  him  in  such  case  would 
involve  no  constitutional  question.20 


SAME— INSTANCES  OF  THE  JURISDICTION 

175.  The  following  are  important  instances  in  which  the 
circuit  court  of  appeals  exercises  appellate  juris- 
diction : 

(a)  Certain  jurisdictional,  constitutional  or  treaty  ques- 
tions not  jurisdictional,  under  the  circumstances 
just  discussed. 

IT  American  Sugar  Refining  Co.  v.  New  Orleans,  181  U.  S.  277,  21 
Sup.  Ct  646,  45  L.  Ed.  859;  HUGULEY  MFG.  CO.  v.  GALETON 
COTTON  MILLS,  184  U.  S.  290,  22  Sup.  Ct  452,  46  L.  Ed.  546; 
Ayres  v.  Polsdorfer,  187  U.  S.  585,  23  Sup.  Ct.  196,  47  L.  Ed.  314 ; 
Watkins  v.  King,  118  Fed.  524,  55  C.  C.  A.  290.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  405. 

is  Ayres  v.  Polsdorfer,  187  U.  S.  585,  23  Sup.  Ct  196,  47  L.  Ed. 
314.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  385,  405. 

i»  HUGULEY  MFG.  CO.  v.  GALETON  COTTON  MILLS,  184  U. 
S.  290,  22  Sup.  Ct  452,  46  L.  Ed.  546 ;  Northern  Pac.  R.  Co.  v.  Soder- 
berg,  188  U.  S.  526,  23  Sup.  Ct  365,  47  L.  Ed.  575 ;  Spreckels  Sugar 
Refining  Co.  v.  McClain,  192  U.  S.  397,  24  Sup.  Ct  376,  48  L.  Ed. 
496.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  S85,  405. 

20  Anglo-American  Provision  Co.  v.  Provision  Co.  No.  1,  191  U.  S. 
376,  24  Sup.  Ct  93,  48  L.  Ed.  226.  See  "Courts,"  Dec.  Dig.  (Key-No^ 
§§  385,  405. 


480  APPELLATE   JURISDICTION  (Ch.  21 

(b)  Criminal  cases. 

(c)  Habeas  corpus  cases. 

(d)  Bankruptcy  cases. 

(e)  Claims  against  the  United  States. 

(f )  Suits  by  the  United  States. 

(g)  Interstate  Commerce  Commission  cases, 
(h)  Decisions  of  territorial  courts. 

(i)  Cases  depending  on  diverse  citizenship. 

(j)  Cases  involving  patent  laws. 

(k)  Cases  involving  revenue  laws. 

(1)  Admiralty  cases. 

In  any  of  the  above  named  instances  the  appeal  may  be 
to  the  Supreme  Court  of  the  United  States  when 
any  of  the  questions  mentioned  in  section  238  is  in- 
volved in  the  case. 

In  bankruptcy  matters  the  circuit  court  of  appeals  has  a 
general  supervisory  appellate  jurisdiction  over  the 
lower  courts  in  matters  of  law.  It  has  appellate 
jurisdiction  by  appeal  or  writ  of  error. 

(a)  From  a  judgment  adjudging  or  refusing  to  adjudge 

the  defendant  a  bankrupt ; 

(b)  From  a  judgment  granting  or  denying  a  discharge; 

(c)  From  a  judgment  allowing  or  rejecting  a  debt  or 

claim  of  five  hundred  dollars  or  over. 

Jurisdiction  over  Criminal  Cases 

The  act,  as  originally  drawn,  gave  jurisdiction  both  over 
cases  of  conviction  of  capital  crimes  and  of  infamous  of- 
fenses. This  was  amended  by  the  act  of  January  20,  1897. 21 
But  section  128  of  the  Judicial  Code  restored  the  jurisdic- 
tion of  the  circuit  court  of  appeals  over  all  criminal  cases. 
In  these  cases  the  only  method  of  reviewing  the  decision  of 
the  trial  court  is  by  writ  of  error,  and  the  only  questions 
reviewable  are  questions  of  law.22 

21  29  Stat.  492,  c.  68  (U.  S.  Comp.  St.  1901,  p.  556). 

22  Bucklin  v.  U.  S.,  159  U.  S.  680,  16  Sup.  Ct  182,  40  L.  Ed.  304. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §  1101. 


§    175)      JURISDICTION   OF  CIRCUIT  COURT   OF   APPEALS         481 

Appeals  in  Habeas  Corpus  Cases 

Under  sections  763  and  764  of  the  Revised  Statutes,23 
the  appeal  from  a  district  court  decision  in  a  habeas  corpus 
case  went  to  the  circuit  court,  and  the  appeal  from  a  cir- 
cuit court  decision  went  to  the  Supreme  Court.  By  the  act 
of  March  3,  1891,  as  has  been  seen,  the  appellate  jurisdic- 
tion of  the  circuit  court  was  abolished ;  and  consequently 
appeals  in  habeas  corpus  cases,  both  from  the  district  court 
and  the  circuit  court,  went,  as  a  rule,  to  the  circuit  court 
of  appeals.  Then  the  abolition  of  the  circuit  court  by  the 
Judicial  Code  leaves  only  the  district  court  to  consider.  In 
such  cases  pending  in  the  district  court,  an  appeal  would 
lie  not  only  from  an  order  of  the  court,  but  also  from  an  or- 
der of  the  judge  at  chambers.24 

But  while,  as  stated  above,  appeals  in  habeas  corpus  cas- 
es, in  the  absence  of  special  grounds  of  jurisdiction,  go  to 
the  circuit  court  of  appeals,  they  would  go  to  the  Supreme 
Court  if  the  case  turned  on  any  one  of  the  classes  set  forth 
in  section  238  of  the  Judicial  Code,  above  quoted ;  that  is, 
cases  involving  jurisdictional  questions  and  certain  federal 
questions.  The  result  is  that  many  of  these  cases  neces- 
sarily go  to  the  Supreme  Court,  for  the  classes  of  habeas 
corpus  cases  of  which  federal  courts  have  jurisdiction  are 
composed  largely  of  cases  involving  such  questions,  as  will 
be  seen  by  reference  to  section  753  of  the  Revised  Stat- 
utes.25 The  method  of  review  is  appeal,  not  writ  of  error.20 


as  u.  S.  Comp.  St.  1901,  pp.  594,  595. 

24  Webb  v.  York,  74  Fed.  753,  21  C.  C.  A.  65.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  405;  Cent.  Dig.  §  1099. 

25U.  S.  Comp.  St.  1901,  p.  592;  Ex  parte  Lennon,  150  U.  S.  393. 
14  Sup.  Ct.  123,  37  L.  Ed.  1120;  Craemer  v.  State,  168  U.  S.  124,  18 
Sup.  Ct.  1,  42  L.  Ed.  407;  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct. 
406,  45  L.  Ed.  577;  Dimmick  v.  Tompkins,  194  U.  S.  540,  24  Sup.  Ct. 
780,  48  L.  Ed.  1110 ;  Pettit  v.  Walshe,  194  U.  S.  205,  24  Sup.  Ct.  657, 
48  L.  Ed.  938.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig. 
§  1099;  "Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  113. 

2«  Fisher  v.  Baker,  203  U.  S.  174,  27  Sup.  Ct  135,  51  L.  EdL  142. 
HUGHES  FED.PB.(2o  ED.) — 31 


482  APPELLATE    JURISDICTION  (Ch.  21 

Appeals  in  Bankruptcy 

Quite  an  extensive  jurisdiction  is  vested  in  the  circuit 
court  of  appeals  by  virtue  of  the  provisions  of  the  bankrupt 
law.  Sections  24  and  25  of  that  act 27  provide  as  follows : 

"Sec.  24  (a)  The  Supreme  Court  of  the  United  States, 
the  circuit  courts  of  appeals  of  the  United  .States,  and  the 
supreme  courts  of  the  territories,  in  vacation  in  chambers 
and  during  their  respective  terms,  as  now  or  as  they  may 
be  hereafter  held,  are  hereby  invested  with  appellate  juris- 
diction of  controversies  arising  in  bankruptcy  proceedings 
from  the  courts  of  bankruptcy  from  which  they  have  appel- 
late jurisdiction  in  other  cases.  The  Supreme  Court  of  the 
United  States  shall  exercise  a  like  jurisdiction  from  courts 
of  bankruptcy  not  within  any  organized  circuit  of  the  Unit- 
ed States  and  from  the  supreme  court  of  the  District  of 
Columbia. 

"(b)  The  several  circuit  courts  of  appeal  shall  have  ju- 
risdiction in  equity,  either  interlocutory  or  final,  to  super- 
intend and  revise  in  matter  of  law  the  proceedings  of  the 
several  inferior  courts  of  bankruptcy  within  their  jurisdic- 
tion. Such  power  shall  be  exercised  on  due  notice  and  pe- 
tition by  any  party  aggrieved. 

"Sec.  25  (a)  That  appeals,  as  in  equity  cases,  may  be  tak- 
en in  bankruptcy  proceedings  from  the  courts  of  bankrupt- 
cy to  the  circuit  court  of  appeals  of  the  United  States,  and 
to  the  supreme  court  of  the  territories,  in  the  following  cas- 
es, to  wit, 

"(1)  From  a  judgment  adjudging  or  refusing  to  adjudge 
the  defendant  a  bankrupt; 

"(2)  From  a  judgment  granting  or  denying  a  discharge; 
and 

"(3)  From  a  judgment  allowing  or  rejecting  a  debt  or 
claim  of  five  hundred  dollars  or  over.  Such  appeal  shall  be 

7  Ann.  Cas.  1018 ;  Wong  Heung  v.  Elliott,  179  Fed.  110,  102  C.  C.  A. 
408.     See  "Courts,"  Dec.  Dig.  (Key-No.)   §  405;  Cent.  Dig.  §  1099; 
"Habeas  Corpus,"  Dec.  Dig.  (Key-No.)  §  113. 
27  U.  S.  Comp.  St.  1901,  pp.  3431,  3432.* 


§    175)      JURISDICTION   OF  CIRCUIT  COURT   OF   APPEALS         483 

taken  within  ten  days  after  the  judgment  appealed  from 
has  been  rendered,  and  may  be  heard  and  determined  by 

the  appellate  court  in  term  or  vacation,  as  the  case  may  be. 

*     *     * » 

Same — Supervisory  Review 

It  will  be  seen  from  these  sections  that  there  are  two 
methods  of  reviewing  the  action  of  the  lower  court  in  the 
circuit  court  of  appeals — one  by  the  last  paragraph  of  sec- 
tion 24,  which  is  an  informal  supervisory  power  of  review, 
and  the  other  under  the  provisions  of  section  25,  which  is 
a  formal  appeal  in  the  limited  cases  therein  specified. 

Considering  the  supervisory  power  first,  it  appears  that 
only  matters  of  law  can  be  reviewed  under  this  proceed- 
ing.28 In  such  cases  the  decision  of  the  circuit  court  of 
appeals  is  final,  subject  only  to  the  issue  of  a  certiorari  pro- 
vided by  the  act  of  March  3,  1891. 29  This  right  of  super- 
vision, however,  extends  only  to  bankruptcy  proceedings 
proper.30  A  plenary  suit  by  the  trustee  against  third  par- 
ties is  not  such  an  order  of  administration,  but  is  a  separate 
suit,  and  is  not  reviewable  by  this  process.31  On  the  other 
hand,  a  claim  of  a  third  party  against  a  fund  in  the  hands 
of  a  trustee  is  a  bankruptcy  matter,  and  is  reviewable  as 


2  s  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  209,  46  L.  Ed.  405; 
ELLIOTT  v.  TOEPPNER.  187  U.  S.  327,  23  Sup.  Ct.  133,  47  L.  Ed. 
200 ;  In  re  EGGERT,  102  Fed.  735,  43  C.  C.  A.  1.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  //-}/,  449,  456. 

29  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45,  48  L. 
Ed.  116.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  448,  441,  449. 

so  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct  45,  48  L. 
Ed.  116;  First  Nat.  Bank  v.  Chicago  Title  &  Trust  Co.,  198  U.  S. 
280,  25  Sup.  Ct.  693,  49  L.  Ed.  1051.  The  character  of  questions  in- 
cluded in  bankruptcy  proceedings  proper  is  well  explained  by  Judge 
Lurton  in  Re  Mueller,  135  Fed.  711,  68  C.  C.  A.  349.  See,  also. 
Barnes  v.  Pampel,  192  Fed.  525,  113  C.  C.  A.  81.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  440,  W- 

si  In  re  Loving,  224  U.  S.  183.  32  Sup.  Ct.  446,  56  L.  Ed.  725;  In 
re  Hamilton  Automobile  Co.,  198  Fed.  856,  117  C.  C.  A.  135.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  440,  441. 


484  APPELLATE    JURISDICTION  (Ch.  21 

far  as  any  legal  questions  are  involved.32  So,  too,  an  order 
entered  by  the  bankruptcy  court  on  petition  of  a  creditor 
to  sell  the  bankrupt's  homestead  is  reviewable  as  an  admin- 
istration order.33 

The  "proceedings  of  the  several  inferior  courts  of  bank- 
ruptcy within  their  jurisdiction"  mean  the  proceedings  of 
the  district  courts  within  the  territorial  jurisdiction  of  the 
corresponding  Circuit  Court  of  Appeals.34 

As  illustrations  of  the  legal  questions  reviewable,  it  has 
been  held  that  an  order  requiring  a  bankrupt  to  transfer  a 
liquor  license,  which  is  transferable,  with  the  consent  of 
certain  governmental  authorities,  under  the  state  law,  can 
be  reviewed  as  to  questions  of  law  in  this  proceeding.35 
So  a  claim  of  ownership  to  funds  in  trustee's  hands  is  re- 
viewable  as  to  matters  of  law.36 

Where  the  question  involved  is  close  on  the  border  line 
between  the  cases  reviewable  under  this  section  and  the 
cases  appealable  under  the  next  section,  the  party  may  take 
both  proceedings,  and  the  appellate  court  will  act  upon  the 
one  which  it  considers  the  proper  one.37  The  question 
whether  a  creditor  can  amend  his  specifications  in  opposi- 
tion to  the  bankrupt's  discharge  is  reviewable  under  this 
provision.38  As  to  the  form  of  such  a  petition,  it  should 


82Antigo  Screen  Door  Co.,  123  Fed.  249,  59  C.  C.  A.  248.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §$  440,  441- 

ss  Ingram  v.  Wilson,  125  Fed.  913,  60  C.  C.  A.  618.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §§  440,  441. 

s*  In  re  Seebold,  105  Fed.  910,  45  C.  C.  A.  117.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §§  441,  451. 

s  s  Fisher  v.  Cushman,  103  Fed.  860,  43  C.  C.  A.  381,  51  L.  R.  A. 
292.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  440,  441,  451. 

seHutchinson  v.  Le  Roy,  113  Fed.  202,  51  C.  C.  A.  159;  Same  v. 
Otis,  115  Fed.  937,  53  C.  C.  A.  419;  Id.,  190  U.  S.  552,  23  Sup.  Ct. 
778,  47  L.  Ed.  1179.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  440, 
W- 

87  in  re  Worcester  County,  102  Fed.  808,  42  C.  C.  A.  637.  Bee 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  440,  441- 

as  Goodman  v.  Curtis,  174  Fed.  644,  98  C.  C.  A.  398.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §§  440,  441. 


§   175)      JURISDICTION   OF  CIBCUIT  COURT   OF   APPEAU3         485 

state  the  question  involved,  and  be  accompanied  by  enough 
of  the  record  in  the  case  to  show  how  it  arose  and  was  de- 
termined.89 

Such  petition  should  be  filed  in  the  circuit  court  of  ap- 
peals, and  cannot  be  allowed,  nor  the  proceeding  matured, 
by  the  district  judge.40 

Same — Procedure  by  Appeal  or  Writ  of  Error 

Although  the  language  of  section  25  speaks  simply  of 
appeals,  the  Supreme  Court  has  held  that  a  writ  of  error  is 
proper  when  the  proceeding  appealed  from  in  its  nature 
should  be  taken  up  by  such  a  writ,  and  the  thirty-seventh  41 
bankruptcy  order  provides:  "In  proceedings  in  equity,  in- 
stituted for  the  purpose  of  carrying  into  effect  the  provi- 
sions of  the  act,  or  for  enforcing  the  rights  and  remedies 
given  by  it,  the  rules  of  equity  practice  established  by  the 
Supreme  Court  of  the  United  States  shall  be  followed  as 
nearly  as  may  be.  In  proceedings  at  law,  instituted  for  the 
same  purpose,  the  practice  and  procedure  in  cases  at  law 
shall  be  followed  as  nearly  as  may  be.  *  *  *  " 

Accordingly,  when  the  procedure  has  involved  a  jury 
trial,  as  is  authorized  by  some  provisions  of  the  bankrupt 
law,  it  necessarily  follows  that  there  must  be  bills  of  ex- 
ceptions, and  that  such  a  case  shall  be  taken  to  the  circuit 
court  of  appeals,  not  by  appeal,  but  by  writ  of  error.42 

The  appealable  cases  in  section  25  are,  as  appears  from 
the  quotation  above,  only  three  in  number.  The  first  of 
these  is  from  a  judgment  adjudging  or  refusing  to  adjudge 
the  defendant  a  bankrupt.43 

The  second  is  from  a  judgment  granting  or  denying  a 

»•  Courier  Journal  Job  Printing  Co.  v.  Schaefer-Meyer  Brewing 
Co.,  101  Fed.  699,  41  C.  C.  A.  G14 ;  In  re  Tax t,  133  Fed.  511,  66  C.  C. 
A.  385.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §§  440,  444. 

40  In  re  Williams  (D.  C.)  105  Fed.  906.    See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §  444- 

41  89  Fed.  xiv,  32  C.  C.  A.  xxxvi;  18  Sup.  Ct.  Ix. 

«  Duncan  v.  Landis,  106  Fed.  839,  45  C.  C.  A.  666;  ELLIOTT  v. 
TOEPPNER,  187  U.  S.  327,  23  Sup.  Ct  133,  47  L.  Ed.  200.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  449;  Cent.  Dig.  §  915. 

«  ELLIOTT  v.  TOEPPXER,  187  U.   S.  327,  23  Sup.  Ct.   133,  47 


486  APPELLATE   JURISDICTION  (Ch.  21 

discharge.  In  re  Adler  44  holds  that  under  this  provision 
an  appeal  from  an  order  refusing  to  confirm  or  confirm- 
ing a  composition  will  not  lie;  but  in  U.  S.  v.  Ham- 
mond 45  the  contrary  opinion  was  reached,  on  the  ground 
that  the  action  of  the  court  in  that  particular  settled  the 
question  of  discharge,  and  this  seems  to  be  based  on  better 
reason.  The  usual  presumptions  in  favor  of  the  action  of 
an  inferior  court  prevail  on  such  appeals.  Where  a  dis- 
charge has  been  refused  on  the  ground  of  fraud,  the  error 
must  be  manifest  before  there  will  be  a  reversal.46 

The  third  and  much  the  most  usual  class  of  appeals  is 
from  judgments  allowing  or  rejecting  a  debt  or  claim  of 
five  hundred  dollars  or  over.  This  means  a  money  demand, 
not  a  demand  for  specific  property.47 

If  the  only  question  about  the  debt  was  its  priority,  and 
not  its  validity,  the  procedure  would  have  to  be  by  re- 
view;48 but,  when  an  appeal  is  taken  from  the  allowance 
or  rejection  of  such  a  claim,  the  court  can,  as  incidental  to 
that  appeal,  consider  the  question  of  rank  or  lien.49 

The  appeal  may  be  taken  by  the  trustee  from  an  order 
denying  his  motion  to  expunge  a  claim.50  In  one  case51 

L.  Ed.  200.  See  "Bankruptcy"  Dec.  Dig.  (Key-No.)  §§  449,  455; 
Cent.  Dig.  §  916. 

44  (D.  C.)  103  Fed.  444.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.) 
§  455;  Cent.  Dig.  §  916. 

45104  Fed.  862,  44  C.  C.  A.  229.  See  "Bankruptcy,"  Dec.  Dig. 
(Key-No.)  §  455;  Cent.  Dig.  §  916. 

46  Osborne  v.  Perkins,  112  Fed.  127,  50  C.  C.  A.  158.  See  "Bank- 
ruptcy," Dec.  Dig.  (Key-No.)  §  467;  Cent.  Dig.  §  929. 

*  7  in  re  Whitener,  105  Fed.  180,  44  C.  C.  A.  434;  HOLDEN  v. 
STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45,  48  L.  Ed.  116.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  455;  Cent.  Dig.  §  916. 

48  in  re  Worcester  County,  102  Fed.  808,  42  C.  C.  A.  637.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  440;  Cent.  Dig.  §  915. 

4»  Cunningham  v.  Insurance  Bank,  103  Fed.  932,  43  C.  C.  A.  377; 
Hutchiuson  v.  Otis,  190  U.  S.  552,  23  Sup.  Ct.  778,  47  L.  Ed.  1179. 
See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  461;  Cent.  Dig.  §  929. 

so  Livingstone  v.  Heineman,  120  Fed.  786,  57  C.  C.  A.  154.  See 
"Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  457;  Cent.  Dig.  §  917. 

si  In  re  Roche,  101  Fed.  956,  42  C.  C.  A.  115.  See  "Bankruptcy," 
Dec.  Dig.  (Key-No.)  §  457;  Cent.  Dig.  §  917. 


§    175)      JURISDICTION   OF  CIRCUIT   COURT   OF   APPEALS         487 

it  was  held  that  any  party  affected,  including  a  creditor 
whose  dividend  was  diminished,  could  take  an  appeal ;  but 
the  better  opinion  is  that  the  trustee  represents  the  credi- 
tors in  such  a  matter,  and  that  only  he  can  take  such  an 
appeal,  the  remedy  of  objecting  creditors  being  an  applica- 
tion to  the  court  to  require  an  appeal  by  the  trustee.52  The 
right  of  appeal  under  this  section  does  not  exist  in  contests 
over  an  insurance  policy  claimed  to  be  exempt,  as  that  is 
riot  one  of  the  enumerated  classes.53 

Same— Claims  against  the  United  States  under  Section  24, 
Paragraph  W,  of  the  Judicial  Code 

In  the  classes  therein  enumerated,  the  course  of  appeal 
is  to  the  circuit  court  of  appeals,  unless  one  of  the  ques- 
tions named  in  section  238  of  the  Judicial  Code  exists,  in 
which  case  it  goes  to  the  Supreme  Court.84 

This  question  has  been  touched  upon  in  the  chapter 
which  discusses  the  jurisdiction  of  the  courts  in  suits 
against  the  United  States.85 

Suits  by  the  United  States 

Appeals  in  these  cases  also  go  to  the  circuit  court  of  ap- 
peals. In  U.  S.  v.  American  Bell  Telephone  Co.,80  which 
was  a  suit  to  cancel  a  patent,  the  Supreme  Court  held  that 
the  circuit  court  of  appeals  had  appellate  jurisdiction  over 
such  a  case,  though  its  decision  would  not  be  final,  as  the 
fact  that  the  United  States  were  parties  gave  another  in- 

52  Chatfleld  v.  O'Dwyer,  101  Fed.  797,  42  C.  C.  A.  30;  Foreriian  v. 
Burleigh,  109  Fed.  313,  48  C.  C.  A.  376 ;  In  re  Mexico  Hardware  Co. 
(D.  C.)  197  Fed.  650;  In  re  Pittsburg  Lead  &  Zinc  Co.  (D.  C.)  198 
Fed.  316.  See  "Bankruptcy,"  Dec*  Dig.  (Key-No.)  §  457;  Cent.  Dig. 
§  917. 

63  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct  45,  48  L. 
Ed.  116.  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  455;  Cent.  Dig. 
§  916.' 

54  U.  S.  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct.  294,  43  L.  Ed.  556 ; 
U.  S.  v.  Coudert,  73  Fed.  505,  19  C.  C.  A.  543 ;  Coudert  v.  U.  S.,  175 
U.   S.  178,  20  Sup.  Ct.  56,  44   L.  Ed.  122.     See  "Bankruptcy,"  Dec. 
Dig.  (Key-No.)  §§  451-453;  Cent.  Dig.  §  914- 

55  Ante,  p.  190. 

so  159  U.  S.  548,  16  Sup.  Ct.  69.  40  L.  Ed.  255.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  382,  406. 


488  APPELLATE   JURISDICTION  (Ch.  2U 

dependent  ground  of  jurisdiction,  and  prevented  the  case 
from  turning  simply  upon  the  question  that  it  was  a  suit 
under  the  patent  laws.  It  was  held  in  the  same  case  that 
a  suit  to  cancel  a  patent  was  not  a  suit  under  the  patent 
laws  in  the  sense  in  which  it  was  used  in  section  6  of  the 
act  of  March  3,  1891,  now  section  128  of  the  Judicial  Code. 

Interstate  Commerce  Commission  Cases 

Appeals  by  parties  aggrieved  under  the  provisions  of 
this  act  also  go  to  the  circuit  court  of  appeals,  in  the  ab- 
sence of  any  special  grounds  of  jurisdiction  in  the  Supreme 
Court.57 

Appeals  from  Special  Courts 

Under  sections  128,  131,  and  134  of  the  Judicial  Code, 
the  decisions  of  the  district  court  for  Hawaii,  the  United 
States  court  for  China  and  the  district  court  for  Alaska 
are  reviewable  by  the  circuit  court  of  appeals,  subject  to 
the  provisions  conferring  jurisdiction  on  the  Supreme 
Court  in  the  special  kind  of  questions  which  it  is  the  policy 
of  Congress  to  remit  to  that  court. 

SAME— CASES  IN  WHICH  THE  DECISION  OF  THE 
CIRCUIT  COURT  OF  APPEALS  IS  FINAL 

176.  The  decision  of  the  circuit  court  of  appeals  is  final  in 

the  following  classes  of  cases  on  appeal: 
(a)'  Cases  depending  on  diverse  citizenship. 

(b)  Cases  involving  patent  or  copyright  laws. 

(c)  Cases  involving  revenue  laws. 

(d)  Criminal  cases. 

(e)  Admiralty  cases. 

67  Interstate  Commerce  Commission  v.  Atchison,  T.  &  S.  F.  R.  Co., 
149  U.  S.  264,  13  Sup.  Ct.  837,  37  L.  Ed.  727;  Interstate  Commerce 
Commission  v.  Baird,  194  U.  S.  25,  24  Sup.  Ct.  563,  48  L.  Ed.  860 ; 
Mitchell  Coal  &  Coke  Co.  v.  Pennsylvania  R.  Co.,  192  Fed.  475,  112 
C.  C.  A.  637 ;  A.  J.  Phillips  Co.  v.  Grand  Trunk  Western  R.  Co.,  195 
Fed.  12,  115  C.  C.  A.  94.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405; 
Cent.  Dig.  §  1099. 


§    176)      JURISDICTION   OF  CIRCUIT  COURT   OF   APPEALS         489 

In  the  above  classes  of  cases,  however,  the  appeal  may 
be  to  the  Supreme  Court  of  the  United  States 
when  any  of  the  questions  mentioned  in  section 
238  of  the  Judicial  Code  are  involved. 

These  are  enumerated  in  section  128  of  the  Judicial  Code, 
and  are  as  follows:  "In  which  the  jurisdiction  is  dependent 
entirely  upon  the  opposite  parties  to  the  suit  or  controver- 
sy, being  aliens  and  citizens  of  the  United  States  or  citi- 
zens of  different  states ;  also  in  all  cases  arising  under  the 
patent  laws,  under  the  copyright  laws,  under  the  revenue 
laws,  and  under  the  criminal  laws  and  in  admiralty  cases." 

If,  however,  the  pleadings  show  that  the  ground  on  which 
the  case  is  based  and  on  which  it  turned  was  a  federal  ques- 
tion, but  not  one  of  those  enumerated  in  section  238,  then 
the  decision  of  the  circuit  court  of  appeals  is  not  final.58 
But  the  mere  fact  that  such  a  federal  question  might  have 
been  raised  does  not  prevent  the  decision  of  the  circuit 
court  of  appeals  from  being  final  when  it  was  not  actually 
raised.50 

If  the  jurisdiction  of  the  lower  court  rests  both  on  the 
diverse  citizenship  and  the  existence  of  a  federal  question, 
the  jurisdiction  of  the  circuit  court  of  appeals  is  not  final.60 

It  frequently  happens  that  jurisdiction  would  vest  in 
the  trial  court  in  the  first  instance  by  reason  of  diverse 
citizenship,  and  that  constitutional  questions  subsequently 
arise  in  the  case.  Under  these  circumstances,  if  the  court 


68  FLORIDA  CENT.  &  P.  R.  CO.  v.  BELL,  176  TL  S.  321,  20  Sup. 
Ct.  399.  44  L.  Ed.  486.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  382,  405. 

6»  World's  Columbian  Exposition  v.  U.  S.,  56  Fed.  654,  6  C.  C.  A. 
58;  Empire  State-Idaho  Mining  &  Developing  Co.  v.  Hanley,  205  U. 
S.  225,  27  Sup.  Ct  476,  51  L.  Ed.  779.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §§  382,  405. 

«o  Mississippi  Railroad  Commission  v.  Illinois  Cent.  R.  Co.,  203 
U.  S.  335,  27  Sup.  Ct.  90,  51  L.  Ed.  209;  Railroad  Commission  of 
Ohio  v.  Worthington,  225  U.  S.  101,  32  Sup.  Ct.  653,  56  L.  Ed.  1004. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  382,  405. 


490  APPELLATE    JURISDICTION  (Ch.  21 

acquired  jurisdiction  originally  on  the  ground  of  diverse 
citizenship  alone,  an  appeal  will  lie  to  the  circuit  court  of 
appeals;  and,  if  such  an  appeal  is  taken,  the  decision  of 
that  court  is  final.61 

The  Supreme  Court  also,  however,  would  have  jurisdic- 
tion if  a  constitutional  question  should  subsequently  arise, 
though  the  jurisdiction  originally  vested  on  the  ground  of 
diverse  citizenship ;  for  it  could  not  have  been  the  intent 
of  Congress  to  deprive  it  of  the  right  to  pass  upon  such  a 
question.  The  only  qualification  is  that  the  litigant  cannot 
take  appeals  to  both  courts.62  A  suit  by  a  national  bank 
against  a  citizen  of  another  state  depends  on  diverse  citi- 
zenship, and  the  decision  of  the  circuit  court  of  appeals  is 
final  in  such  case.63 

Patent  Cases 

This  is  one  of  the  class  in  which  the  decision  of  the  cir- 
cuit court  of  appeals  is  made  final,  but  the  simple  fact  that 
a  patent  may  come  before  the  court  in  litigation  does  not 
make  the  case  a  patent  case  under  such  circumstances.  The 
cases  included  in  this  description  have  been  described  by 
the  Supreme  Court  as  follows :  "Actions  at  law  for  infringe- 
ment, and  suits  in  equity  for  infringement,  for  interference, 
and  to  obtain  patents,  are  suits  which  clearly  arise  under 
the  patent  laws ;  being  brought  for  the  purpose  of  vindicat- 
ing rights  created  by  those  laws,  and  coming  strictly  within 
the  avowed  purpose  of  the  act  to  relieve  this  court  of  that 

«i  Colorado  Cent.  Consol.  Min.  Co.  v.  Turck,  150  TJ.  S.  138,  14  Sup. 
Ct.  35,  37  L.  Ed.  1030 ;  Pope  v.  Louisville,  N.  A.  &  C.  R.  Co.,  173  U. 
S.  573,  19  Sup.  Ct.  500,  43  L.  Ed.  814;  Spencer  v.  Duplan  Silk  Co., 
191  U.  S.  526,  24  Sup.  Ct.  174,  48  L.  Ed.  287.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  382,  405. 

62  Cincinnati,  H.  &  D.  Ry.  Co.  v.  Thiebaud,  177  U.  S.  615,  20  Sup. 
Ct.  822,  44  L.  Ed.  911 ;  American  Sugar  Refining  Co.  v.  City  of  New 
Orleans,  181  U.  S.  277,  21  Sup.  Ct.  646,  45  L.  Ed.  859.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §§  382,  405. 

63  CONTINENTAL  NAT.   BANK  V.   BUFORD,   191  U.   S.   119,   24 
Sup.  Ct.  54,  48  L.  Ed.  119.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  382, 
405. 


§    176)      JURISDICTION   OF  CIRCUIT   COURT   OF   APPEALS         491 

burden  of  litigation  which  operated  to  impede  the  disposi- 
tion of  cases  of  peculiar  gravity  and  general  importance. 
We  are  of  opinion  that  it  is  reasonable  to  assume  that  the 
attention  of  Congress  was  directed  to  this  class  of  cases, 
and  that  the  language  was  used  as  applicable  only  to 
them."  64 

Accordingly  it  was  held  in  the  case  from  which  the  above 
quotation  is  taken  that  a  suit  by  the  United  States  to  can- 
cel a  patent  as  improperly  issued  was  not  a  suit  "arising 
under  the  patent  laws,"  in  the  sense  of  this  act.  So,  too, 
a  suit  to  enjoin  the  collection  of  a  state  tax  on  a  patent 
right  was  not  a  suit  under  the  patent  laws,  but  was  a  suit 
involving  the  validity  of  a  state  statute,  and  hence  the  ap- 
peal should  be  to  the  Supreme  Court,  and  not  to  the  cir- 
cuit court  of  appeals.68 

Revenue  Laws 

In  this  class  of  cases,  also,  the  decision  of  the  circuit 
court  of  appeals  is  made  final.  A  revenue  law  is  defined  by 
the  Supreme  Court  as  a  law  imposing  duties  on  imposts  or 
tonnage,  or  a  law  providing  in  terms  for  revenue;  that  is 
to  say,  a  law  which  is  directly  traceable  to  the  power  grant- 
ed to  Congress  by  section  8,  art.  1,  of  the  Constitution,  "to 
lay  and  collect  taxes,  duties,  imposts,  and  excises."  6<J  The 
decision  of  the  circuit  court  reviewing  the  action  of  a  board 
of  appraisers  under  the  act  of  June  10,  1890  (26  Stat.  131, 
c.  407  [U.  S.  Comp.  St.  1901,  p.  1886]),  is  reviewable  by 

«*  U.  S.  v.  American  Bell  Telephone  Co.,  159  U.  S.  548.  553.  554, 
16  Sup.  Ct.  69,  40  L.  Ed.  255.  See,  also,  ante,  pp.  78,  242 ;  The  Fair  v. 
Kohler  Die  &  Specialty  Co.,  228  U.  S.  22,  33  Sup.  Ct  410,  57  L.  Ed. 
.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  290,  405. 

65  Holt  v.  Indiana  Mfg.  Co.,  80  Fed.  1,  25  C.  C.  A.  301;  Id.,  176 
TJ.  S.  68,  20  Sup.  Ct.  272,  44  L.  Ed.  374.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §§  290,  1,05. 

aa  U.  S.  v.  Hill,  123  U.  S.  681,  8  Sup.  Ct  308,  31  L.  Ed.  275.  Com- 
pare Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397,  24 
Sup.  Ct.  376,  48  L.  Ed.  496,  and  U.  S.  v.  Norton,  91  U.  S.  566,  23  L. 
Ed.  454;  ante,  p.  77.  Bee  "Court*,"  Dec.  Dig.  (Key-No.)  §§  297,  405; 
'Cent.  Dip.  8  839. 


492  APPELLATE  JURISDICTION  (Ch.  21 

the  circuit  court  of  appeals  as  a  revenue  law,  and  the  judg- 
ment of  the  latter  court  in  such  case  is  final.67 

Criminal  Laws 

In  these  cases,  too,  the  decision  of  the  circuit  court  of 
appeals  is  final.  A  proceeding  by  contempt  is  so  far  crim- 
inal that  the  Supreme  Court  has  no  jurisdiction  of  it,  and 
the  decision  of  the  circuit  court  of  appeals  is  final.68 

Admiralty  Cases 

Here,  too,  the  decision  of  the  circuit  court  of  appeals  is 
final.  In  this  respect  an  appeal  from  the  decision  of  the 
court  in  the  ordinary  questions  arising  out  of  limited  lia- 
bility proceedings  is  an  admiralty  case  reviewable  only  by 
the  circuit  court  of  appeals.69  But  when  a  jurisdictional 
question  arises,  either  in  a  limited  liability  case  or  any  oth- 
er admiralty  case,  then  the  appeal  goes  to  the  Supreme 
Court,  under  section  238  of  the  Judicial  Code.70 

In  reference  to  all  the  classes  of  cases  discussed  in  this 
connection,  as  cases  in  which  the  decision  of  the  circuit 
court  of  appeals  is  final,  it  must  be  borne  constantly  in 
mind  that  in  these,  as  in  all  other  decisions  of  the  circuit 
court  of  appeals,  the  Supreme  Court  may  obtain  jurisdic- 
tion either  to  review  special  questions  arising,  in  case  the 
circuit  court  of  appeals  certifies  such  questions  up  to  it, 
or  to  decide  the  whole  case,  if,  when  such  questions  are  cer- 
tified up,  it  thinks  proper  to  require  the  whole  record  to  be 
sent  to  it,  or  if,  independent  of  any  such  certificate  from 
the  circuit  court  of  appeals,  it  decides  on  application  for  a 
certiorari  to  bring  the  whole  case  up  by  that  process. 

67  U.  S.  v.  Hopewell,  51  Fed.  798,  2  C.  C.  A.  510;  SAME  v.  JAHN, 
155  TJ.  S.  109,  15  Sup.  Ct.  39,  39  L.  Ed.  87;  Anglo-Californian  Bank 
v.  U.  S.,  175  U.  S.  37,  20  Sup.  Ct.  19,  44  L.  Ed.  64.  But  the  Judicial 
Code  has  carried  the  provisions  of  the  act  of  August  5,  1909,  into  sec- 
tions 196-198,  which  confer  this  jurisdiction  on  the  Court  of  Customs 
Appeals.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  297,  405;  Cent.  Dig.  §  839. 

cs  O'Neal  v.  U.  S.,  190  U.  S.  36,  23  Sup.  Ct.  776,  47  L.  Ed.  945.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §  1101. 

«»  Oregon  R.  &  Nav.  Co.  v.  Balfour,  179  U.  S.  55,  21  Sup.  Ct.  28, 
45  L.  Ed.  82.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  382,  405. 

TO  The  Alliance,  70  Fed.  273,  17  C.  C.  A.  124;  The  Annie  Faxonr 


§    177)      JURISDICTION   OF  CIRCUIT  COURT  OF   APPEALS        493 

SAME— POWER  OF  CIRCUIT  COURT  OF  APPEALS 
TO  ISSUE  AUXILIARY  WRITS 

177.  The  circuit  court  of  appeals  can  issue  auxiliary  writs 
only  incidentally  to  cases  pending  in  it. 

Section  262  of  the  Judicial  Code  reads  as  follows :  "The 
Supreme  Court  and  the  district  courts  shall  have  power 
to  issue  writs  of  scire  facias.  The  Supreme  Court,  the  cir- 
cuit courts  of  appeals,  and  the  district  courts  shall  have 
power  to  issue  all  writs  not  specifically  provided  for  by 
statute,  which  may  be  necessary  for  the  exercise  of  their 
respective  jurisdictions,  and  agreeable  to  the  usages  and 
principles  of  law." 

Under  this  provision,  however,  it  has  been  uniformly 
held  that  the  circuit  court  of  appeals  has  no  power  to  issue 
any  of  these  writs  as  independent  proceedings,  but  only  as 
incidental  to  a  case  regularly  brought  before  it  by  appeal 
or  writ  of  error.  For  instance,  in  U.  S.  v.  Severens,71  the 
issue  of  a  mandamus  was  refused  where  no  case  was  pend- 
ing in  the  court;  and  in  U.  S.  v.  Judges  of  United  States 
Court  of  Appeals  72  it  was  held  that  such  a  writ  could  not 
be  used  in  lieu  of  an  appeal,  but  only  in  aid  of  a  jurisdiction 
already  acquired.  Nor  will  this  court  issue  a  certiorari  as 
an  original  process.73  The  same  conclusion  was  reached 
as  to  the  issue  of  a  writ  of  prohibition.7*  So  as  to  habeas 
corpus.75 

87  Fed.  961,  31  C.  C.  A.  325 ;   The  Presto,  93  Fed.  522,  35  C.  C.  A.  394. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  382,  40->. 

71  71  Fed.  768,  18  C.  C.  A.  314.     See,  also,  McClellan  v.  Garland, 
217  U.  S.  268,  30  Sup.  Ct.  501,  54  L.  Ed.  762.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  404- 

72  85  Fed.  177,  29  C.  C.  A.  78.     See,  also,  Vacuum  Cleaner  Co.  v. 
Platt,  196  Fed.  398,  116  C.  C.  A.  220.    See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  404. 

"Travis  County  v.  King  Iron  Bridge  &  Mfg.  Co.,  92  Fed.  690, 
34  C.  C.  A.  620.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  404. 

74  In  re  PAQUET,  114  Fed.  437,  52  C.  C.  A.  239.     See  "Courts," 
Dec.  Dig.  (Key-No.)  §  404. 

75  Whitney  v.  Dick,  202  U.  S.  132,  26  Sup.  Ct.  584,  50  L.  Ed.  963. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  404. 


494  APPELLATE   JURISDICTION  (Ch.  22 


CHAPTER  XXII 

APPELLATE  JURISDICTION  (Continued)— THE  SUPREME 

COURT 

178.  The  Supreme  Court  of-  the  United  States — Its  Organization. 

179.  The  Appellate  Jurisdiction  of  the  Supreme  Court — The  Courts 

whose  Decisions  are  Reviewable  by  the  Supreme  Court. 

180.  Appeals  from  the  United  States  District  Courts. 

181.  Appeals  from  the  Circuit  Courts  of  Appeals. 

182.  Appeals  from  Territorial  Courts. 

183.  Appeals  from  the  Court  of  Appeals  of  the  District  of  Columbia. 

184.  Appeals  from  the  Court  of  Claims. 

185.  Appeals  from  the  Commerce  Court. 

186.  Review  of  State  Court  Decisions. 

187.  Same— Constitutionality. 

188.  Same — The  Proceedings  Reviewable. 

189.  Same — The  Courts  whose  Decisions  are  Reviewable. 

190.  Same — By  Whom  the  Right  of  Review  may  be  Invoked. 

191.  Same — Character  of  Questions  Reviewable. 

192.  Same — How  a  Federal  Question  must  be  Raised  or  Shown  by 

the  Record. 


THE  SUPREME  COURT  OF  THE  UNITED  STATES 
—ITS  ORGANIZATION 

178.  The  Supreme  Court  of  the  United  States  is  the  court 
exercising  the  highest  powers  of  appellate  jurisdic- 
tion; this  jurisdiction  comprising  certain  appeals 
from  all  of  the  other  federal  courts  and  from  the 
state  courts  of  last  resort,  according  to  regulations 
fixed  by  law. 

The  Supreme  Court  consists  of  a  chief  justice  of  the  Unit- 
ed States  and  eight  associate  justices,  any  six  of 
whom  constitute  a  quorum. 

The  judges  of  the  Supreme  Court  are  appointed  by  the 
President  of  the  United  States,  and  hold  office  dur- 
ing good  behavior.  Under  the  chief  justice,  the 


§  178)  SUPREME   COUET — ORGANIZATION  495 

associate  justices  take  precedence  according  to  the 
dates  of  their  commissions,  or,  if  their  commis- 
sions are  dated  alike,  according  to  their  ages. 

In  another  connection  the  original  jurisdiction  of  the  Su- 
preme court  has  been  discussed.  It  is  now  necessary  to 
consider  its  appellate  jurisdiction,  which  is  far  the  most 
extensive  body  of  law  which  it  administers. 

Composition  of  the  Supreme  Court 

Section  215  of  the  Judicial  Code  provides:  "The  Su- 
preme Court  of  the  United  States  shall  consist  of  a  chief 
justice  of  the  United  States  and  eight  associate  justices, 
any  six  of  whom  shall  constitute  a  quorum." 

For  a  long  time  the  court  was  composed  of  seven  jus- 
tices, but  this  number  was  afterwards  increased  to  nine, 
the  present  number.  Under  section  216,  the  associate  jus- 
tices take  precedence  according  to  the  dates  of  their  com- 
missions ;  if  their  commissions  are  dated  alike,  according  to 
their  ages. 

Sessions  of  the  Supreme  Court 

It  is  provided  by  section  230  of  the  Judicial  Code  that 
the  court  shall  hold  one  term  annually  at  the  seat  of  gov- 
ernment, commencing  on  the  second  Monday  in  October, 
and  such  adjourned  or  special  terms  as  it  may  find  neces- 
sary for  the  dispatch  of  business.  In  actual  practice,  on 
account  of  the  pressure  of  business  upon  it,  the  court  is 
in  almost  continuous  session  from  October  until  the  early 
part  of  the  following  May;  only  adjourning  occasionally, 
and  using  even  those  adjournments  for  the  purpose  of  writ- 
ing up  opinions  in  cases  argued  and  submitted. 

Appellate  Jurisdiction  of  the  Supreme  Court — Sources  and 
Regulation  of 

The  second  paragraph  of  the  second  section  of  article  3 
of  the  Constitution  provides : 

"In  all  cases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  those  in  which  a  state  shall  be  party, 


496  APPELLATE   JURISDICTION  (Ch.  22 

the  Supreme  Court  shall  have  original  jurisdiction.  In  all 
the  other  cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions,  and  under  such  regulations  as  the  Con- 
gress shall  make." 

Hence  its  original  jurisdiction  springs  directly  from  the 
Constitution,  but  its  appellate  jurisdiction  is  subject  to 
regulation  by  Congress.1 

THE  APPELLATE  JURISDICTION  OF  THE  SU- 
PREME COURT— THE  COURTS  WHOSE 
DECISIONS  ARE  REVIEWABLE  BY 
THE  SUPREME  COURT 

179.  The  Courts  whose  decisions  are  reviewable  by  the  Su- 

preme Court  of  the  United  States  under  regula- 
tions fixed  by  law  are: 

(a)  The  United  States  district  courts. 

(b)  The  United  States  circuit  courts  of  appeals. 

(c)  The  territorial  courts,  and  courts  of  the  dependen- 

cies. 

(d)  The  courts  of  the  District  of  Columbia. 

(e)  The  court  of  claims. 

(f)  The  commerce  court.* 

(g)  State  courts  of  last  resort. 

APPEALS  FROM  THE  UNITED  STATES  DISTRICT 

COURTS 

180.  The  Supreme  Court  exercises  appellate  jurisdiction  di- 

rectly over  the  district  courts  of  the  United  States 
in  the  following  cases : 

(a)  When  jurisdictional  questions  are  involved. 

(b)  Prize  causes. 

i  National  Exchange  Bank  v.  Peters,  144  IT.  S.  570,  12  Sup.  Ct. 
767,  36  L.  Ed.  545.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  380;  Cent. 
Dig.  §  996. 

*  Since  abolished.     See  post,  p.  701. 


§  180)      APPEALS  FROM  UNITED  STATES  DISTRICT  COURTS       497 

(c)  Some  criminal  causes. 

(d)  Constitutional  or  treaty  questions,  comprehending: 

(1)  The  construction  or  application  of  the  federal  Con- 

stitution ; 

(2)  The  constitutionality  of  a  federal  law; 

(3)  The  validity  or  construction  of  a  treaty; 

(4)  The  constitutionality  of  a  state  law. 

(e)  Suits  by  the  United  States  under  anti-trust  legisla- 

tion. 

The  most  of  the  litigation  in  these  courts  is  reviewable, 
as  has  been  seen,  by  the  circuit  court  of  appeals,  and  the 
jurisdiction  of  the  Supreme  Court  is  the  exception  and  not 
the  rule;  but,  under  section  238  of  the  Judicial  Code,  the 
latter  has  jurisdiction  over  the  decisions  of  the  district 
courts  in  exceptional  cases  of  general  importance.  The 
section  reads :  "Appeals  and  writs  of  error  may  be  taken 
from  the  district  courts,  including  the  United  States  dis- 
trict court  for  Hawaii,  direct  to  the  Supreme  Court,  in  the 
following  cases :  In  any  case  in  which  the  jurisdiction  of  the 
court  is  in  issue,  in  which  case  the  question  of  jurisdiction 
alone  shall  be  certified  to  the  Supreme  Court  from  the  court 
below  for  decision ;  from  the  final  sentences  and  decrees  in 
prize  causes;  in  any  case  that  involves  the  construction  or 
application  of  the  Constitution  of  the  United  States;  in  any 
case  in  which  the  constitutionality  of  any  law  of  the  United 
States,  or  the  validity  or  construction  of  any  treaty  made  un- 
der its  authority  is  drawn  in  question;  and  in  any  case  in 
which  the  constitution  or  law  of  a  state  is  claimed  to  be  in 
contravention  of  the  Constitution  of  the  United  States." 

(a)  Jurisdictional  Questions 

The  first  paragraph  of  the  act  requires  the  appeal  to  go 
straight  to  the  Supreme  Court  where  the  jurisdiction  of  the 
lower  court  is  in  issue,  but  in  such  case  the  court  can  only 
consider  the  question  of  jurisdiction,  and  not  the  case  on 
the  merits.  In  this  respect  this  first  class  differs  from  the 
HUGHES  FED.PB.(2o  ED.) — 32 


498  APPELLATE   JURISDICTION  (Ch.  22 

subsequent  ones.  In  order  to  give  the  Supreme  Court  ju- 
risdiction over  such  a  question,  there  must  be  a  certificate 
of  the  court  accompanying  the  appeal  or  writ  of  error,  and 
without  such  certificate  the  court  has  no  power  to  review 
even  a  question  of  jurisdiction.2  This  certificate  must  be 
made  by  the  lower  court  during  the  term  at  which  final 
judgment  is  rendered,  and  cannot  be  made  at  a  subsequent 
term.3  There  is  no  specific  form  which  this  certificate  must 
follow.  It  should  be,  in  the  main,  similar  to  the  old  form 
adopted  by  the  courts  when  certifying  to  the  Supreme 
Court  particular  questions  or  propositions  of  law  wherein 
they  differed  in  opinion.4  In  no  event  can  the  Supreme 
Court  be  required,  even  where  the  case  turned  on  a  juris- 
dictional  question,  to  search  through  the  record  and  ex- 
hume it  from  a  great  mass  of  pleadings  or  rulings.5  At  the 
same  time,  there  is  no  magic  in  the  mere  use  of  the  word 
"certified,"  but  anything  which  may  present  to  the  appel- 
late court  the  single,  well-defined  question  of  jurisdiction, 
severed  from  all  collateral  questions,  will  be  sufficient.  For 
instance,  in  one  case  the  parties  who  had  obtained  a  receiv- 
er in  a  state  court  applied  to  a  federal  court  to  discharge  a 
receiver  which  the  latter  court  had  appointed;  claiming 
that  the  state  court  had  first  obtained  jurisdiction  over  the 

2  ROBINSON  v.  CALDWELL,  165  U.  S.  359,  17  Sup.  Ct  343,  41 
L.  Ed.  745 ;  ante,  p.  477.  A  bill  of  exceptions  may  be  used  to  pre- 
sent the  question  if  it  does  not  otherwise  appear  from  the  record, 
but,  under  well-known  principles  of  pleading,  is  unnecessary  it"  the 
fact  otherwise  appears  from  the  record.  C.  H.  Nichols  Lumber  Co. 
v.  Franson,  203  U.  S.  278,  27  Sup.  Ct.  102,  51  L.  Ed.  181 ;  Frederic 
L.  Grant  Shoe  Co.  v.  W.  M.  Laird  Co.,  212  U.  S.  448,  29  Sup.  Ct.  332, 
53  L.  Ed.  591.  See  "Courts,"  Dec.  Dig.  (Key-No  J  §  385;  Cent.  Dig.  § 
1013. 

s  COLVIN  v.  JACKSONVILLE,  158  U.  S.  456,  15  Sup.  Ct.  866,  39 
L.  Ed.  1053.  This  case  contains  a  good  form  of  certificate  of  a 
jurisdictional  question.  See  "Courts"  Dec.  Dig.  (Key-No.)  §  385; 
Cent.  Dig.  §  1013. 

4  Maynard  v.  Hecht,  151  U.  S.  324,  14  Sup.  Ct.  353,  38  L.  Ed.  179. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  1013. 

6  Van  Wagenen  v.  Sewall,  160  U.  S.  369,  36  Sup.  Ct  370,  40  L. 
Ed.  460.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  585;  Cent.  Dig.  §  1013 


§  180)      APPEALS  FROM  UNITED  STATES  DISTRICT  COURTS       499 

subject-matter,  and  that  its  receiver  was  in  prior  posses- 
sion. The  federal  court  refused  to  discharge  its  receiver, 
and  from  this  order  an  appeal  was  taken.  The  petition  for 
an  appeal  set  out  the  action  of  the  lower  court,  and  prayed 
for  an  appeal  from  the  order  taking  and  exercising  juris- 
diction; and  the  federal  judge,  in  allowing  the  appeal,  stat- 
ed in  the  order  that  it  was  granted  solely  upon  the  ques- 
tion of  jurisdiction.  The  Supreme  Court  held  this  suffi- 
cient, using  the  following  language:  "It  is  not  necessary 
that  the  word  'certify'  be  formally  used.  It  is  sufficient  if 
there  is  a  plain  declaration  that  the  single  matter  which  is 
by  the  record  sent  up  to  this  court  for  decision  is  a  ques- 
tion of  jurisdiction,  and  the  precise  question  clearly,  fully, 
and  separately  stated.  No  mere  suggestion  that  the  juris- 
diction of  the  court  was  in  issue  will  answer.  This  court 
will  not  of  itself  search,  nor  follow  counsel  in  their  search 
of  the  record,  to  ascertain  whether  the  judgment  of  the  trial 
court  did  or  did  not  turn  on  some  question  of  jurisdiction. 
But  the  record  must  affirmatively  show  that  the  trial  court 
sends  up  for  consideration  a  single,  definite  question  of 
jurisdiction."  e 

In  another  case  7  the  record  showed  that  there  was  a  plea 
to  the  jurisdiction  in  the  lower  court  on  the  ground  that 
the  suit  was  a  collusive  attempt  to  confer  upon  the  federal 
court  a  jurisdiction  not  conferred  upon  it  by  law.  The 
judgment  of  the  court  recited  these  pleas,  the  replications 
thereto,  an  agreed  statement  of  facts,  the  recital  that  the 
court  decided  against  the  jurisdiction,  the  opinion  of  the 
court,  and  also  a  bill  of  exceptions  reciting  the  ruling  of 
the  court  on  the  jurisdictional  point,  and  the  exception 
thereto.  The  order  allowing  the  writ  of  error  also  recited 
the  ruling  of  the  court  on  the  question  of  jurisdiction,  and 

e  Shields  v.  Coleinan,  157  U.  S.  168,  15  Sup.  Ct.  570,  39  L.  Ed.  660. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dif).  §  10 IS. 

i  In  re  Lehigh  Min.  &  Mfg.  Co.,  156  U.  S.  322,  15  Sup.  Ct  375,  39 
L.  Ed.  438.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  § 
1013. 


500  APPELLATE    JURISDICTION  (Ch.  22 

allowed  the  appeal.  It  was  held  that  this  was  a  sufficient 
certificate  of  the  question  of  jurisdiction. 

In  another  case  8  the  record  showed  that  the  only  matter 
which  had  been  tried  in  the  lower  court  was  a  demurrer 
to  a  plea  to  the  jurisdiction;  that  the  decision  of  the  court 
on  that  issue  was  against  the  jurisdiction,  and  dismissed 
the  case ;  and  the  petition  for  the  allowance  of  an  appeal 
simply  prayed  for  a  review  of  the  judgment  holding  that 
the  court  had  no  jurisdiction  of  the  case,  on  which  petition 
the  writ  of  error  was  allowed.  This  was  held  a  sufficient 
certificate  under  the  statute. 

In  another  case  9  the  court  had  dismissed  the  action  as 
not  involving  a  controversy  within  the  cognizance  of  the 
federal  courts,  and  this  appeared  clearly  on  the  face  of  the 
record.  The  petition  for  appeal  alleged  that  the  plaintiff 

s  Interior  Const.  &  Imp.  Co.  v.  Gibney,  160  U.  S.  217,  16  Sup.  Ct. 
272,  40  L.  Ed.  401.  See,  also,  The  Jefferson,  215  U.  S.  130,  30  Sup. 
Ct.  54,  54  L.  Ed.  125,  17  Ann.  Cas.  907.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  385;  Cent.  Dig.  §  1013. 

9  Huntington  v.  Laidley,  176  U.  S.  668,  20  Sup.  Ct  526,  44  L.  Ed. 
630.  The  following  was  the  certificate  in  this  case :  "A  final  decree 
having  been  entered  herein,  on  the  25th  day  of  June,  1898,  dis- 
missing this  bill  and  the  bill  and  amended  bills  therein:  Now, 
therefore,  this  court,  in  pursuance  of  the  second  paragraph  of  the 
fifth  section  of  the  act  of  Congress  approved  March  3,  1891,  and  en- 
titled 'An  act  to  establish  circuit  courts  of  appeals  and  to  define  and 
regulate  in  certain  cases  the  jurisdiction  of  the  courts  of  the  United 
States,  and  for  other  purposes,'  hereby  certifies  to  the  Supreme 
Court  of  the  United  States  for  decision  the  question  of  jurisdiction 
alone  of  this  court  over  this  cause  as  follows :  Is  this  court  without 
jurisdiction  of  this  cause  because  of  the  pendency  in  the  state  court, 
prior  to  the  commencement  of  this  suit,  of  the  action  of  ejectment 
in  which  John  B.  Laidley  was  plaintiff  and  the  Central  Land  Co. 
of  West  Va.  was  defendant,  which  was  begun  in  the  circuit  court 
of  Cabell  Co.,  West  Va.,  on  the  first  Monday  in  April,  1882,  and  of 
the  other  actions  in  ejectment  brought  prior  to  this  cause  in  said 
state  court  by  the  said  John  B.  Laidley  as  plaintiff  in  relation  to  the 
property  in  question  in  this  suit,  and  of  the  chancery  cause  in  which 
the  Central  Land  Co.  of  West  Va.  was  complainant  and  John  B. 
Laidley  and  others  were  defendants,  which  was  brought  in  said 
state  court  prior  to  the  commencement  of  this  cause?"  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  1013. 


§  180)      APPEALS  FROM  UNITED  STATES  DISTRICT  COURTS        501 

was  aggrieved  by  the  decree  dismissing  the  suit  on  the 
ground  of  want  of  jurisdiction,  because  of  the  pendency  of 
a  suit  in  the  state  court  begun  prior  to  the  commencement 
of  this  cause,  and  the  order  provided  that  the  appeal  be  al- 
lowed "as  prayed  for."  The  Supreme  Court  held  that  the 
allowance  of  appeal  in  this  form  was  sufficient,  under  these 
circumstances,  independent  of  the  fact  that  the  certificate 
itself  was  also  sufficient. 

In  another  case  10  the  decree  and  the  allowance  of  the  ap- 
peal both  showed  that  the  only  question  in  issue  was  juris- 
diction. The  court  held  that  no  separate  certificate  was 
necessary. 

On  the  other  hand,  if  the  jurisdictional  question  appears 
in  the  record,  not  as  the  sole  question  passed  upon,  but 
only  as  one  of  many,  and  the  order  allowing  the  writ  of 
error  was  in  general  terms,  not  specifying  this  single  ques- 
tion of  jurisdiction,  that  would  not  be  a  sufficient  certifi- 
cate, and  the  court  would  not  take  cognizance  of  the  case 
under  such  circumstances.11 

So,  too,  where  the  record  of  the  case  showed  that  it  had 
turned,  not  upon  a  jurisdictional  question,  but  upon  the 
merits,  even  a  certificate  failing  to  present  a  clear-cut, 
single  jurisdictional  question  would  not  give  the  court  pow- 
er to  review.  The  case  in  which  this  principle  was  an- 
nounced was  a  habeas  corpus  case  in  a  district  court  in 
which  the  writ  was  issued  to  a  county  sheriff,  and  was 
prayed  on  the  ground  that  the  party  confined  under  an  in- 
dictment of  a  state  court  was  acting  at  the  time  as  a  spe- 
cial agent  of  the  general  land  office  in  the  Department  of 
the  Interior  of  the  United  States.  The  court  certified  the 


10  Excelsior  Wooden  Pipe  Co.  v.  Pacific  Bridge  Co.,  185  U.  S.  282, 
22  Sup.  Ct.  681,  46  L.  Ed.  910.    See,  also,  Chicago  v.  Mills,  204  U.  S. 
321,  27  Sup.  Ct.  286,  51  L.  Ed.  504 ;  Herndon-Carter  Co.  v.  James  N. 
Norris  Son  &  Co.,  224  TJ.  S.  496,  32  Sup.  Ct.  550,  56  L.  Ed.  857.    See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  1013. 

11  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct  397,  40  L.  Ed. 
510.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  101S. 


502  APPELLATE   JURISDICTION  (Ch.  22 

following  questions  to  the  Supreme  Court  as  questions  of 
jurisdiction: 

(1)  Whether  this  court  has  jurisdiction  in  the  premises 
to  discharge  the  petitioner,  Charles  A.  M.  Schlierholz,  from 
the  custody   of  John  A.   Hinkle,   sheriff  of  Independence 
county,  Ark.,  for  the  matters  and  things  and  under  the  cir- 
cumstances set  out  in  the  record  in  this  cause. 

(2)  Whether  the  proper  order  of  this  court,  under  the 
facts,  should  have  been  to  remand  said  petitioner  to  the 
custody  of  the  said  sheriff  of  Independence  county,  Ark., 
to  be  dealt  with  by  the  Independence  circuit  court  of  the 
state,  or  to  discharge  him  from  said  custody. 

The  Supreme  Court  held  that  this  certificate  was  not  suf- 
ficiently definite  to  be  considered  a  certificate  of  a  jurisdic- 
tional  question — especially  in  connection  with  the  fact  that 
the  record  in  the  case  did  not  show  that  any  such  question 
had  arisen.12  The  petition  for  the  appeal  cannot  take  the 
place  of  such  a  certificate  when  it  merely  stated  in  general 
terms  that  the  court  acted  without  jurisdiction,  but  did  not 
specify  the  special  jurisdictional  question  arising,  and  the 
judge  allowed  the  appeal  generally  in  the  form  used  when 
entire  records  are  taken  up.  In  such  case,  even  a  more 
definite  statement  of  a  jurisdictional  question  in  the  as- 
signment of  errors  will  not  help.13 

The  questions  which  are  considered  jurisdictional  in  this 
connection  have  been  discussed  in  the  previous  chapter. 
The  jurisdiction  meant  is  the  jurisdiction  in  the  case  from 
which  the  appeal  is  taken,  not  the  jurisdiction  in  a  former 
case  questioned  by  the  latter  case.  For  instance,  where  a 
suit  is  brought,  questioning  the  validity  of  a  foreclosure 
proceeding  in  a  former  suit,  the  jurisdiction  of  the  court 


12  Arkansas  v.  Schlierholz,  179  TJ.  S.  598,  21  Sup.  Ct  229,  45  L. 
Ed.  335.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  1013. 

is  The  Bayonne,  159  U.  S.  687,  16  Sup.  Ct.  185,  40  L.  Ed.  305. 
See  "Courts"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  1013. 


§  180)      APPEALS  FKOM  UNITED  STATES  DISTRICT  COURTS       503 

in  this  former  suit  cannot  be  considered.14  And  the  ques- 
tion whether  a  suit  against  a  state  officer  is  in  effect  a  suit 
against  a  state,  is  not  a  jurisdictional,  but  a  constitutional, 
question,  and  cannot  be  considered  under  this  clause  of 
the  statute.15  On  the  other  hand,  the  question  whether  the 
court  ever  obtained  jurisdiction  over  the  defendant  by  a 
valid  service  of  process  is  a  question  of  jurisdiction  which 
can  be  certified  up.16  Under  some  circumstances,  the  Su- 
preme Court  can  consider  on  appeals  based  on  jurisdiction- 
al questions,  not  only  matters  of  law,  but  matters  of  fact; 
as,  for  instance,  in  an  action  of  ejectment,  where  the  court 
had  held  on  affidavits  that  the  value  of  the  land  involved 
was  less  than  two  thousand  dollars,  the  Supreme  Court 
reviewed  this  finding  on  the  facts,  and  reversed  it.17 

(b)  Prise  Causes 

The  section  requires  appeals  to  go  direct  to  the  Supreme 
Court  "from  the  final  sentences  and  decrees  in  prize  caus- 
es." The  reason  is  the  international  character  of  the  ques- 
tion involved.  Hence,  where  the  question  of  international 
law  was  whether  an  unarmed  fishing  vessel  not  going 
knowingly  to  a  blockaded  port  was  a  lawful  prize,  the 
question  was  taken  to  the  Supreme  Court.18 

i*  Carey  v.  Houston  &  T.  C.  Ry.  Co.,  150  U.  S.  170,  14  Sup.  Ct 
63,  37  L.  Ed.  1041.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent. 
Dig.  §§  1011-1021. 

is  Illinois  Cent.  R.  Co.  v.  Adams,  180  U.  S.  28,  21  Sup.  Ct  251, 
45  L.  Ed.  410.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig. 
§§  1011-1021. 

i«  Mechanical  Appliance  Co.  v.  Castleman,  215  U.  S.  437,  30  Sup. 
Ct.  125,  54  L.  Ed.  272 ;  Davis  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.,  217 
U.  S.  157,  30  Sup.  Ct.  463,  54  L.  Ed.  708,  27  L.  R.  A.  (N.  S.)  823,  18 
Ann.  Cas.  907 ;  U.  S.  v.  Congress  Construction  Co.,  222  U.  S.  199,  32 
Sup.  Ct  44,  56  L.  Ed.  163.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385; 
Cent.  Dig.  §§  1011-1021. 

IT  Wetmore  v.  Rymer,  169  U.  S.  115,  18  Sup.  Ct  293,  42  L.  Ed. 
682;  Commercial  Mut  Ace.  Co.  v.  Davis,  213  U.  S.  245,  29  Sup.  Ct. 
445,  53  L.  Ed.  782.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent. 
Dig.  §§  1011-1021. 

is  The  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct  290,  44  L.  Ed. 
320.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  999. 


504  APPELLATE    JURISDICTION  (Ch.  22 

(c)  Some  Criminal  Causes 

The  pressure  of  business  upon  the  court  has  resulted  in 
but  little  criminal  jurisdiction  being  left  it.  The  most  no- 
table class  is  of  the  questions  arising  under  the  act  of 
March  2,  1907,  which  is  as  follows: 

"Be  it  enacted,  etc.,  that  a  writ  of  error  may  be  taken 
by  and  on  behalf  of  the  United  States  from  the  district  or 
circuit  courts  direct  to  the  Supreme  Court  of  the  United 
States  hi  all  criminal  cases,  in  the  following  instances,  to 
wit: 

"From  a  decision  or  judgment  quashing,  setting  aside,  or 
sustaining  a  demurrer  to,  any  indictment,  or  any  count 
thereof,  where  such  decision  or  judgment  is  based  upon 
the  invalidity,  or  construction  of  the  statute  upon  which  the 
indictment  is  founded. 

"From  a  decision  arresting  a  judgment  of  conviction  for 
insufficiency  of  the  indictment,  where  such  decision  is  based 
upon  the  invalidity  or  construction  of  the  statute  upon 
which  the  indictment  is  founded. 

"From  the  decision  or  judgment  sustaining  a  special 
plea  in  bar,  when  the  defendant  has  not  been  put  in  jeop- 
ardy. 

"The  writ  of  error  in  all  such  cases  shall  be  taken  with- 
in thirty  days  after  the  decision  or  judgment  has  been  ren- 
dered and  shall  be  diligently  prosecuted  and  shall  have  prec- 
edence over  all  other  cases. 

Pending  the  prosecution  and  determination  of  the  writ 
of  error  in  the  foregoing  instances,  the  defendant  shall  be 
admitted  to  bail  on  his  own  recognizance : 

"Provided,  that  no  writ  of  error  shall  be  taken  by  or 
allowed  the  United  States  in  any  case  where  there  has  been 
a  verdict  in  favor  of  the  defendant."  19 

This  act  was  not  repealed  by  the  Judicial  Code.20 

i»  34  Stat.  1246,  c.  2564. 

20  United  States  v.  Winslow,  227  U.  S.  202,  33  Sup.  Ct.  253,  57  L. 

Ed.  .  See  "Courts"  Dec.  Dig.  (Key-No.)  §  885;  Cent*  Dig.  §§ 

1022-1081. 


§  180)      APPEALS  FBOM  UNITED  STATES  DISTEICT  COURTS       505 

This  allowance  of  a  right  of  review  to  the  United  States 
marks  a  sharp  change  of  policy,  but  it  certainly  guards  the 
rights  of  the  accused  in  every  way  possible.  Under  it  a 
number  of  cases  have  been  taken  to  the  Supreme  Court.21 

Another  instance  of  criminal  review  still  left  to  the  Su- 
preme Court  is  in  cases  of  obstructions  to  navigation  by 
bridges. 

Under  the  eighteenth  section  of  the  act  of  March  3,  1899, 
in  relation  to  rivers  and  harbors,  power  is  given  to  the  Sec- 
retary of  War,  acting  through  the  district  attorney,  to  in- 
stitute criminal  proceedings  against  parties  constructing 
bridges  in  such  a  way  as  to  constitute  an  unreasonable  ob- 
struction to  free  navigation.  It  makes  such  act  on  the 
part  of  the  person  so  obstructing  the  navigation  a  misde- 
meanor punishable  by  fine,  if  he  does  not  remove  the  ob- 
struction within  a  certain  time  after  notice.  If  provides 
that  an  appeal  from  any  case  arising  under  the  provisions 
of  this  section  may  be  taken  direct  to  the  Supreme  Court, 
either  by  the  United  States  or  by  the  defendants.22 

(d)  Constitutional  or  Treaty  Questions 

The  section  requires  a  direct  resort  to  the  Supreme  Court 
"in  any  case  that  involves  the  construction  or  application 
of  the  Constitution  of  the  United  States." 

"In  any  case  in  which  the  constitutionality  of  any  law 
of  the  United  States  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority  is  drawn  in  question. 

21  See,  as  illustrations,  II.  S.  v.  Keltel,  211  U.  S.  370,  29  Sup.  Ct. 
123,  53  L.  Ed.  230 ;  U.  S.  v.  Biggs,  211  U.  S.  507,  29  Sup.  Ct.  181,  53 
L.  Ed.  305;  U.  S.  v.  Stevenson,  215  U.  S.  190,  30  Sup.  Ct  35,  54 
L.  Ed.  153 ;  U.  S.  v.  Corbett,  215  U.  S.  233,  30  Sup.  Ct  81,  54  L.  Ed. 
173;  U.  S.  v.  Barber,  219  U.  S.  72,  31  Sup.  Ct  209,  55  L.  Ed.  99. 
See  "Courts,"  Dec.  Dig.  (Key-Ho.)  §  385;  Cent.  Dig.  §§  1022-1031. 

2230  Stat  1153,  c.  425  (U.  S.  Cornp.  St.  1901,  p.  3545).  See,  as 
illustrations  of  such  appeals,  Union  Bridge  Co.  v.  U.  S.,  204  U.  S. 
364,  27  Sup.  Ct.  3G7,  51  L.  Ed.  523;  Monongahela  Bridge  Co.  v.  U. 
S.,  216  U.  S.  177,  30  Sup.  Ct.  356,  54  L.  Ed.  435;  Hannibal  Bridge 
Co.  v.  U.  S.,  221  U.  S.  194,  31  Sup.  Ct  603,  55  L.  Ed.  699.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §  1000. 


506  APPELLATE   JURISDICTION  (Ch.  22 

"In  any  case  in  which  the  Constitution  or  law  of  the 
state  is  claimed  to  be  in  contravention  of  the  Constitution 
of  the  United  States." 

There  is  a  striking  difference  in  the  policy  of  the  act  be- 
tween this  class  of  cases  and  the  class  involving  simply  ju- 
risdictional  questions.  In  the  latter,  only  the  jurisdictional 
question  is  certified,  but  in  these  constitutional  or  interna- 
tional questions  the  whole  case  goes  up,  and  not  simply  the 
constitutional  or  international  question  that  may  be  in- 
volved.23 If  such  a  question  was  raised  on  allegations  so 
false  and  fictitious  as  to  practically  amount  to  bad  faith, 
or  on  propositions  so  bald  as  to  be  self-destructive,  the 
court  would  not  take  jurisdiction;24  but,  if  the  question 
raised  is  bona  fide  and  colorable,  the  court  will  consider 
the  whole  case,  although  it  should,  in  making  such  decision, 
hold  that  the  constitutional  question  on  account  of  which 
the  case  was  taken  up  was  not  sustainable.  On  this  point 
the  Supreme  Court  has  expressed  itself  as  follows : 

"The  argument  by  which  it  is  sought  to  support  the  con- 
tention that  a  right  to  review  the  case  by  direct  appeal 
does  not  exist  not  only  disregards  the  letter  of  the  statute, 
but  is  unsound  in  reason.  It  says  that  the  right  to  the  di- 
rect appeal  can  alone  rest  on  the  proposition  'that  the  Con- 
stitution or  a  law  of  the  state  of  Texas  conflicts  with  ap- 
pellant's contract,  and  contravenes  the  federal  Constitu- 
tion— in  other  words,  it  must  affirmatively  appear  upon  the 
face  of  complainant's  bill  that  there  was  involved  in  this 
case  a  federal  question,  the  determination  of  which  was  es- 
sential to  a  correct  decision  of  the  case';  but  the  words  of 


23  Chappell  v.  TJ.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed.  510; 
Field  v.  Barber  Asphalt  Paving  Co.,  194  U.  S.  618,  24  Sup.  Ct  784, 
48  L.  Ed.  1142.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig. 
§§  1022-1026,  1031. 

2*  Goodrich  v.  Ferris,  214  U.  S.  71,  29  Sup.  Ct.  580,  53  L.  Ed.  914; 
Missouri  Pac.  R.  Co.  v.  Castle,  224  U.  S.  541,  32  Sup.  Ct.  606,  56  L. 
Ed.  875.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  Cent.  Dig.  §§ 
1022-1026,  1031. 


§  180)      APPEALS  FROM  UNITED  STATES  DISTRICT  COURTS       507 

the  statute  which  empower  this  court  to  review  directly  the 
action  of  the  circuit  court  are  that  such  power  shall  exist 
wherever  it  is  claimed  on  the  record  that  a  law  of  a  state 
is  in  contravention  of  the  federal  Constitution.  Of  course, 
the  claim  must  be  real  and  colorable,  not  fictitious  and 
fraudulent.  The  contention  here  made,  however,  is  not 
that  the  bill,  without  color  of  right,  alleges  that  the  state, 
law  and  city  ordinances  violate  the  Constitution  of  the 
United  States,  but  that  such  claim  as  alleged  in  the  bill  is 
legally  unsound.  The  argument,  then,  in  effect,  is  that  the 
right  to  a  direct  appeal  to  this  court  does  not  exist  where 
it  is  claimed  that  a  state  law  violates  the  Constitution  of 
the  United  States,  unless  the  claim  be  well  founded.  But  it 
cannot  be  decided  whether  the  claim  is  meritorious  and 
should  be  maintained  without  taking  jurisdiction  of  the 
case.  The  authorities  referred  to  as  supporting  the  posi- 
tion indicate  that  the  argument  is  a  result  of  a  confusion 
of  thought,  and  that  it  arises  from  confounding  the  power 
of  this  court  to  review  on  a  writ  of  error  the  action  of  a 
state  court  with  the  power  exercised  by  this  court  under  the 
act  of  1891  to  review  by  direct  appeal  the  final  action  of  the 
circuit  court,  where  on  the  face  of  the  record  it  appears 
that  the  claim  was  made  that  the  statute  of  a  state  contra- 
vened the  Constitution  of  the  United  States.  These  classes 
of  jurisdiction  are  distinct  in  their  nature,  and  are  embraced 
in  different  statutory  provisions.  Having  jurisdiction  of 
the  cause,  there  exists  the  power  to  consider  every  question 
arising  on  the  record."  " 

In  order  to  give  jurisdiction  in  this  class,  it  must  clearly 
appear  that  the  question  was  actually  raised  and  passed  on. 
It  is  not  only  necessary  that  a  title,  right,  privilege,  or  im- 
munity is  claimed  under  the  Constitution,  where  the  ap- 
peal is  based  on  the  ground  that  the  construction  or  ap- 

26  PENN  MUT.  LIFE  INS.  CO.  V.  AUSTIN,  168  U.  S.  680,  694, 
695,  18  Sup.  Ct.  223,  42  L.  Ed.  626.  Bee  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  385;  Cent.  Dig.  §§  1022-1026,  10S1. 


508  APPELLATE    JURISDICTION  (Ch.  22 

plication  of  the  Constitution  is  involved,  but  a  definite  issue 
in  respect  to  the  possession  of  the  right  must  be  distinctly 
deducible  from  the  record.  Hence,  although  the  plaintiff 
stated  in  his  complaint  that  he  would  rely  upon  certain 
treaty  provisions  and  upon  the  fifth  amendment  to  the  fed- 
eral Constitution,  but  there  was  nothing  to  show  that  the 
question  actually  arose  in  the  case,  the  court  declined  to 
take  jurisdiction.26 

A  general  exception  to  an  instruction,  not  stating  that  it 
was  objected  to  on  the  ground  that  a  constitutional  ques- 
tion was  involved,  is  not  sufficient  to  make  the  record  show 
such  a  question ;  and,  as  it  must  appear  from  the  record  of 
the  court  of  original  jurisdiction,  an  assignment  of  errors 
cannot  be  used  for  the  purpose  of  grafting  upon  the  record 
such  a  question  for  the  first  time.27  On  the  other  hand, 
the  Supreme  Court  would  have  jurisdiction,  although  the 
question  was  raised  for  the  first  time  by  the  defendant's 
pleading,  as  by  demurrer;  the  principle  being  different  in 
this  case  from  the  rule  that  the  original  jurisdiction  of  a 
federal  court,  as  based  on  a  federal  question,  must  appear 
from  the  plaintiff's  statement  of  his  own  case,  as  has  been 
discussed  in  a  previous  connection.28 

It  makes  no  difference  which  of  the  two  parties  appeals. 
The  court  has  jurisdiction  in  either  case,  if  such  a  question 
is  involved.  For  instance,  in  Loeb  v.  Columbia  Tp.29  the 
federal  question  was  raised  by  the  defendant's  demurrer 
and  decided  in  his  favor,  and  the  plaintiff  was  the  appel- 
lant. On  the  other  hand,  in  Connolly  v.  Union  Sewer  Pipe 


26  Muse  v.  Arlington  Hotel  Co.,  168  U.  S.  430,  18  Sup.  Ct.  109,  42 
L.  Ed.  531.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  298,  385. 

27  Cincinnati,  H.  &  D.  R.  Co.  v.  Thiebaud,  177  U.  S.  615,  20  Sup. 
Ct.  822,  44  L.  Ed.  911.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385; 
Cent.  Dig.  §§  1022-1026,  1031. 

28  Loeb  v.  Township,  179  U.  S.  472,  21  Sup.  Ct  174,  45  L.  Ed.  280; 
ante,  pp.  236,  312.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

29179  U.  S.  472,  21  Sup.  Ct.  174,  45  L.   Ed,  280.     See  "Courts," 
Dec.  Dig.  (Key-No.)  §  385. 


§  180)      APPEALS  FROM  UNITED  STATES  DISTRICT  COURTS        509 

Co.30  the  constitutional  question  was  raised  by  the  plain- 
tiff, sustained  by  the  court,  and  appealed  by  defendant.  In 
both  cases  the  court  held  that  it  had  jurisdiction.31 


CASES  INCLUDED  IN  THIS  CLASS 

(1)  "In  Any  Case  That  Involves  the  Construction  or  Applica- 
tion of  the  Constitution  of  the  United  States" 

In  order  to  give  jurisdiction  under  this  heading,  the  con- 
stitutional question  must  be  directly  involved,  and  must  be 
a  controlling  question  in  the  case.32 

Notwithstanding  the  broad  language  of  this  statute,  it 
was  not  intended  to  change  the  long-established  principle 
of  criminal  law  that  no  appeal  lies  on  behalf  of  the  govern- 
ment. Hence  in  criminal  cases  the  United  States  cannot 
appeal,  except  under  the  act  of  March  2,  1907,  just  dis- 
cussed, though  a  constitutional  question  is  involved.33  But 
the  defendant  can  take  any  criminal  case  to  the  Supreme 
Court  that  involves  a  constitutional  question.3* 

Mere  irregularities  in  judicial  proceedings  which  can  be 
corrected  by  review  are  not  considered  constitutional  ques- 
tions. For  instance,  the  allegation  that  a  decree  of  court 
deprived  the  plaintiff  of  his  property  without  due  process 
of  law  is  not  such  a  question.35  So  the  allegation  that  the 
action  of  the  court  in  directing  a  verdict  deprived  the  liti- 

so  184  U.  S.  540,  22  Sup.  Ct.  431,  46  L.  Ed.  679.  See  "Courts,"  Dec. 
Difj.  (Key-No.)  §  885. 

si  See,  also,  Cosmopolitan  Min.  Co.  v.  Walsh,  193  U.  S.  460,  24 
Sup.  Ct.  489,  48  L.  Ed.  749.  See  "Courts,"  Dec.  Dig.  (Ken-No.)  §  385. 

s  2  Carey  v.  Houston  &  T.  C.  Ry.  Co.,  150  U.  S.  170,  14  Sup.  Ct 
63,  37  L.  Ed.  1041.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

SB  U.  S.  v.  Sanges,  144  U.  S.  310,  12  Sup.  Ct.  609,  36  L.  Ed.  445. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  "Criminal  Law,"  Dec.  Dig. 
(Key-No.)  §  1024;  Cent.  Dig.  §§  2599-2614. 

s*  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct  993,  44  L.  Ed.  1150. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

35  Carey  v.  Houston  &  T.  C.  Ry.  Co.,  150  U.  S.  170,  14  Sup.  Ct 
63,  37  L.  Ed.  1041.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 


510  APPELLATE   JURISDICTION  (Ch.  22 

gant  of  the  right  of  trial  by  jury  is  not  a  constitutional 
question.36 

So  the  question  whether  process  was  served  on  a  state 
agent  of  a  foreign  corporation  in  accordance  with  the  state 
statute  regulating  it  was  not  a  constitutional  question.37 
So,  too,  the  question  whether  parties  were  collusively 
joined  for  the  purpose  of  conferring  jurisdiction  on  a  fed- 
eral court.38  On  the  other  hand,  a  constitutional  question 
was  held  to  be  involved  when  a  collector  of  internal  reve- 
nue refused  to  file  in  a  state  court  copies  of  papers  in  his 
office  which  he  was  forbidden  by  federal  regulations  to  di- 
vulge, in  consequence  of  which  he  was  committed  for  con- 
tempt by  the  state  court,  and  a  proceeding  by  habeas  corp- 
us was  based  thereon.39  So,  too,  a  constitutional  question 
was  involved  when  the  trial  court  admitted,  against  the 
prisoner's  objection,  the  written  testimony  that  a  witness 
had  given  at  the  examining  trial;  the  allegation  being  that 
this  deprived  the  accused  of  the  constitutional  right  of  be- 
ing confronted  with  the  witnesses  against  him.40 

The  right  to  vote  for  members  of  Congress  being  a  right 
claimed  under  the  federal  Constitution,  a  suit  against  the 
state  election  officers  for  refusing  a  vote  involves  a  con- 
stitutional question.41 

The  right  to  build  a  dock  in  navigable  waters,  which  was 

s«C.  A.  Treat  Mfg.  Co.  v.  Standard  Steel  &  Iron  Co.,  157  TJ.  S. 
674,  15  Sup.  Ct.  718,  39  L.  Ed.  853.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  385. 

37  Cosmopolitan  Min.  Co.  v.  Walsh,  193  U.  S.  460,  24  Sup.  Ct  489, 
48  L.  Ed.  749.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

ss  Merritt  v.  Bowdoin  College,  169  U.  S.  551^  18  Sup.  Ct  415,  42 
L.  Ed.  850.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

39  Boske  v.  Comingore,  177  U.  S.  459,  20  Sup.  Ct  701,  44  L.  Ed. 
846.     As  another  exaJriple  of  a  habeas  corpus  appeal,  see  Pierce  v. 
Creecy,  210  U.  S.  387,  28  Sup.  Ct.  714,  52  L.  Ed.  1113.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  385. 

40  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct  993,  44  L.  Ed.  1150. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

41  Wiley  v.   Sinkler,  179  U.   s.  58,  21  Sup.  Ct.  17,  45  L.  Ed.  84. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 


§  180)      APPEALS  FBOM  UNITED  STATES  DISTRICT  COUBT8       511 

claimed  under  certain  acts  of  Congress  and  a  permit  from 
the  Secretary  of  War,  and  which  was  disputed,  involves  a 
constitutional  question.42 

(2)  "In  Any  Case  in  Which  the  Constitutionality  of  Any  Law 

of  the  United  States  *  *  *  is  Drawn  in  Question" 
This  class  of  jurisdiction  in  the  Supreme  Court  only  ap- 
plies where  the  constitutionality  of  the  federal  statute  is 
questioned.  A  mere  question  of  construction  under  a  fed- 
eral statute  does  not  come  within  this  class.48  Hence  there 
are  many  federal  questions  of  which  the  federal  trial  courts 
have  jurisdiction,  but  which  do  not  fall  within  this  class — 
such  as  questions  involving  the  mere  construction  of  a 
federal  statute,  and  not  its  validity.  Such  cases  cannot  go 
by  direct  appeal  from  the  courts  of  original  jurisdiction  to 
the  Supreme  Court,  but  it  will  be  seen,  in  discussing  the 
jurisdiction  of  the  Supreme  Court  over  cases  from  the  cir- 
cuit courts  of  appeals,  that  the  decision  of  the  circuit  courts 
of  appeals  is  not  final  in  such  cases,  and  that,  therefore,  if 
they  involve  a  sufficient  amount,  they  can  be  taken  to  the 
Supreme  Court  from  that  court.  But  wherever  the  validity 
of  a  federal  statute  is  questioned,  the  appeal  lies  directly  to 
the  Supreme  Court.44 

(3)  "In  Any  Case  in  Which    *     *     *     the  Validity  or  Con- 

struction of  Any  Treaty  Made  under  Its  Authority  is 
Drawn  in  Question" 

Here,  too,  it  must  appear  that  the  validity  or  construc- 
tion of  a  treaty  was  actually  involved  or  passed  upon.45 

<2  Cummings  v.  Chicago,  188  U.  S.  410,  23  Sup.  Ct  472,  47  L.  Ed. 
525.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

43  Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397,  24  Sup. 
Ct.  376,  48  L.  Ed.  496.  See  "Courts,"  Dec.  Dig.  (Key-^o.)  §  385. 

«4  Homer  v.  U.  S.,  143  U.  S.  570,  12  Sup.  Ct.  522,  36  L.  Ed.  266 
(involving  the  constitutionality  of  section  3894  of  the  Revised  Stat- 
utes [U.  S.  Comp.  St  1901,  p.  2659]  forbidding  the  use  of  the  mails 
for  lotteries) ;  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397, 
40  L.  Ed.  510  (involving  the  validity  of  a  federal  condemnation  act). 
See  "Courts,"  Dec.  Dig.  (Key-lSo.)  §  385. 

45  Muse  v.  Arlington  Hotel  Co.,  168  U.  S.  430,  18  Sup.  Ct.  109.  42 


512  APPELLATE    JURISDICTION  (Ch.  22 

Where  a  treaty  comes  before  the  court  only  in  an  inci- 
dental way,  as  part  of  the  history  of  a  case,  or  as  relevant 
to  some  main  issue  involved,  this  is  not  sufficient  to  confer 
jurisdiction  on  the  Supreme  Court  under  this  section.48 
But  where  the  construction  of  the  treaty  is  necessary  for 
the  decision,  although  it  may  be  connected  with  other  ques- 
tions in  the  case,  the  Supreme  Court  has  jurisdiction.47 

(4)  "In  Any  Case  in  Which  the  Constitution  or  Law  of  a  State 
is  Claimed  to  be  in  Contravention  of  the  Constitution  of 
the  United  States" 

It  has  always  been  the  policy  of  Congress  to  make  the 
Supreme  Court  the  final  arbiter  of  questions  of  this  char- 
acter, it  being  the  only  class  in  which  an  appeal  lies  from  a 
state  court  to  a  federal  court,  as  will  be  seen  hereafter. 

But  such  right  to  review  the  inferior  federal  courts  of 
original  jurisdiction  by  the  Supreme  Court  can  be  invoked 
only  by  the  party  actually  affected.  For  instance,  a  city 
cannot  set  up  that  an  act  extending  boundaries  deprives 
residents  of  the  outlying  territory  of  their  property  with- 
out due  process  when  the  parties  themselves  have  made 
no  complaint.48  And  the  Supreme  Court  has  the  right  to 
review  the  entire  case  under  this  section,  though  the  lower 
court  has  certified  a  question  up  as  a  jurisdictional  ques- 
tion, for  it  is  not  in  the  power  of  the  lower  court  to  narrow 
the  jurisdiction  of  the  Supreme  Court  by  such  a  certifi- 
cate.49 

L.  Ed.  531;  Altman  &  Co.  v.  U.  S.,  224  U.  S.  583,  32  Sup.  Ct  593, 
56  L.  Ed.  894.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  298,  385. 

46  Borgmeyer  v.  Idler,  159  U.  S.  408,  16  Sup.  Ct.  34,  40  L.  Ed.  199; 
Sloan  v.  U.  S.,  193  U.  S.  614,  24  Sup.  Ct.  570,  48  L.  Ed.  814;  The 
Pilot  v.  United  States,  53  Fed,  11,  3  C.  C.  A.  392.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  385. 

4  T  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406,  45  L.  Ed.  577; 
Mitchell  v.  Furman,  180  U.  S.  402,  21  Sup.  Ct.  430,  45  L.  Ed.  596; 
Pettit  v.  Walshe,  194  U.  S.  205,  24  Sup.  Ct.  658,  48  L.  Ed.  938.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

48  Lampasas  v.  Bell,  180  U.  S.  276,  21  Sup.  Ct.  368,  45  L.  Ed.  527. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

4»  Giles  v.  Harris,  189  U.  S.  475,  23  Sup.  Ct.  639,  47  L.  Ed.  909. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 


§  180)      APPEALS  FROM  UNITED  8TATE8  DISTRICT  COURTS       513 

One  of  the  most  numerous  classes  of  cases  involving  the 
validity  of  state  legislation  is  where  such  legislation  is 
claimed  to  impair  the  obligation  of  a  contract.50  The  ques- 
tion whether  state  legislation  denies  the  equal  protection 
of  the  laws  has  also  been  the  subject  of  many  such  cases.61 
The  language  of  all  these  subdivisions  to  section  238  clear- 
ly gives  an  appeal  to  the  Supreme  Court  only  from  such 
proceedings  in  court  as  would  constitute  a  case,  and  not 
from  proceedings  of  a  mere  administrative  character  which 
happen  to  be  vested  in  a  district  court.62  And  in  all  these 
cases  the  Supreme  Court  has  jurisdiction  regardless  of  the 
amount  involved.5* 

(e)  Suits  by  the  United  States  under  the  Anti-Trust  Acts 

The  act  of  February  11,  1903,54  provides  in  its  second  sec- 
tion that  any  suit  in  equity  brought  under  the  anti-trust 
acts  wherein  the  United  States  is  complainant,  may  be 
taken  direct  to  the  Supreme  Court.66 

eo  PENN  MUT.  LIFE  INS.  CO.  v.  AUSTIN,  168  TJ.  S.  685,  18  Sup. 
Ct.  223,  42  L.  Ed.  626 ;  Illinois  Cent.  R.  Co.  v.  Adams,  180  U.  S.  28, 

21  Sup.  Ct.  251,  45  L.  Ed.  410.    See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
385. 

si  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  22  Sup.  Ct. 
431,  46  L.  Ed.  679 ;  Fidelity  Mut.  Life  Ass'n  v.  Mettler,  185  U.  S.  308, 

22  Sup.  Ct  662,  46  L.  Ed.  922.    See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
385. 

52  PACIFIC  STEAM  WHALING  CO.  v.  U.  S.,  187  U.  S.  447,  23 
Sup.  Ct  154,  47  L.  Ed.  253.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

53  Kirby  v.  American  Soda  Fountain  Co.,  194  U.  S.  141,  24  Sup. 
Ct.  619,  48  L.  Ed.  911.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385. 

8*32  Stat  823,  c.  544,  amended  by  Act  June  25,  1910,  c.  428,  36 
Stat  854  (U.  S.  Comp.  St.  Supp.  1911,  p.  1383). 

66  NORTHERN  SECURITIES  CO.  v.  U.  S.,  193  U.  S.  197,  24  Sup. 
Ct.  436,  48  L.  Ed,  679;  Interstate  Commerce  Commission  v.  Baird, 
194  U.  S.  25,  24  Sup.  Ct.  5G3,  48  L.  Ed.  860;  Baltimore  &  O.  R.  Co. 
v.  Interstate  Commerce  Commission,  215  U.  S.  216,  30  Sup.  Ct  86,  54 
L.  Ed.  164.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  385;  "Monopolies," 
Dec.  Dig.  (Key-No.)  §  24. 

HUGHES  FED.PB.(2o  ED.)— 33 


514  APPELLATE   JURISDICTION  (Ch.  22 

APPEALS  FROM  THE  CIRCUIT  COURTS  OF 
APPEALS 

181.  The   Supreme  Court  exercises   appellate   jurisdiction 
over  the  circuit  court  of  appeals: 

(a)  By  certificate  from  the  circuit  court  of  appeals  when 

the  judges  of  that  court  desire  to  certify  a  question 
to  the  Supreme  Court  for  its  decision. 

(b)  By  writ  of  certiorari  from  the  Supreme  Court  to  the 

circuit  court  of  appeals  when  the  judges  of  the 
Supreme  Court  desire  to  review  in  the  highest 
court  the  decision  of  some  question  of  great  im- 
portance. 

(c)  By  appeal  or  writ  of  error  in  all  cases  in  which  the 

decision  of  the  circuit  court  of  appeals  is  not  final. 

(d)  In  certain  cases  under  the  bankrupt  act. 

Section  239  of  the  Judicial  Code  provides: 
"In  any  case  within  its  appellate  jurisdiction,  as  denned 
in  section  one  hundred  and  twenty-eight,  the  circuit  court 
of  appeals  at  any  time  may  certify  to  the  Supreme  Court 
of  the  United  States  any  questions  or  propositions  of  law 
concerning  which  it  desires  the  instruction  of  that  court 
for  its  proper  decision ;  and  thereupon  the  Supreme  Court 
may  either  give  its  instruction  on  the  questions  and  propo- 
sitions certified  to  it,  which  shall  be  binding  upon  the  cir- 
cuit court  of  appeals  in  such  case,  or  it  may  require  that  the 
whole  record  and  cause  be  sent  up  to  it  for  its  considera- 
tion, and  thereupon  shall  decide  the  whole  matter  in  con- 
troversy in  the  same  manner  as  if  it  had  been  brought  there 
for  review  by  writ  of  error  or  appeal." 

(a)  Review  on  Certificate 

Under  this  paragraph,  the  first  method  in  which  the  Su- 
preme Court  can  acquire  jurisdiction  to  review  cases  in  the 
circuit  courts  of  appeals  is  by  a  certificate  from  the  latter 


§  181)         APPEALS  FBOM  CIRCUIT  COURTS  OF  APPEALS  515 

court,  the  object  of  which  is  to  present  to  the  Supreme 
Court  definite  propositions  of  law. 

There  is  some  ambiguity  whether  this  certificate  can  be 
issued  in  any  case  of  which  the  circuit  court  of  appeals  has 
jurisdiction,  or  only  in  those  cases  of  which  it  has  final  ju- 
risdiction. The  more  natural  construction  of  the  words  "in 
every  such  subject  within  its  appellate  jurisdiction,"  which 
precede  the  provision  as  to  the  certificate,  would  seem, 
however,  to  be  that  they  allude  to  the  appellate  jurisdiction 
to  review  by  appeal  or  writ  of  error  all  the  decisions  of  the 
district  courts  except  those  provided  for  by  section  238  of 
the  Judicial  Code,  and  that  the  words  above  quoted  qualify 
this  first  part  of  the  section,  and  not  simply  the  part  imme- 
diately preceding  them,  which  specify  the  cases  of  final  ju- 
risdiction. The  object  of  the  certificate  will  apply  to  both 
alike,  and  it  is  not  only  more  natural  to  suppose  that  the 
circuit  courts  of  appeals  could  certify  questions  up  from  all 
cases  in  its  jurisdiction  than  to  suppose  that  they  were  lim- 
ited ;  but  this  view  is  also  strengthened  by  the  fact  that,  in 
the  subsequent  paragraph  relating  to  the  right  of  the  Su- 
preme Court  to  issue  a  certiorari,  that  is  expressly  limited 
to  cases  made  final,  thus  drawing  a  distinction  between  the 
cases  going  up  by  a  certificate  and  cases  brought  up  by 
certiorari. 

The  object  of  this  provision  and  its  limits  are  well  ex- 
pressed in  an  opinion  of  Mr.  Justice  Brewer: 

"It  may  be  proper  to  observe  that  the  purpose  of  the  act 
of  1891  creating  the  courts  of  appeals,  was  to  vest  final  ju- 
risdiction as  to  certain  classes  of  cases  in  the  courts  then 
created ';  and  this  in  order  that  the  docket  of  this  court 
might  be  relieved,  and  it  be  enabled  with  more  promptness 
to  dispose  of  the  cases  directly  coming  to  it.  In  order  to 
guard  against  any  injurious  results  which  might  flow  from 
having  nine  appellate  courts  acting  independently  of  each 
other,  power  was  given  to  this  court  to  bring  before  it  by 
certiorari  any  case  pending  in  either  of  those  courts.  In 


516  APPELLATE   JURISDICTION  (Cll.  22 

that  way  it  was  believed  that  uniformity  of  ruling  might  be 
secured,  as  well  as  the  disposition  of  cases  whose  gravity 
and  importance  rendered  the  action  of  the  tribunal  of  last 
resort  peculiarly  desirable,  but  the  power  of  determining 
what  cases  should  be  so  brought  up  was  vested  in  this 
court,  and  it  was  not  intended  to  give  to  any  one  of  the 
courts  of  appeals  the  right  to  avoid  the  responsibility  cast 
upon  it  by  statute  by  transmitting  any  case  it  saw  fit  to 
this  court  for  decision.  If  such  practice  were  tolerated,  it 
is  easy  to  perceive  that  the  purpose  of  the  act  might  be  de- 
feated, and  the  courts  of  appeals,  by  transferring  cases 
here,  not  only  relieve  themselves  of  burden,  but  also  crowd 
upon  this  court  the  very  cases  which  it  was  the  intent  of 
Congress  they  should  finally  determine.  It  is  true,  power 
was  given  to  the  courts  of  appeals  to  certify  questions,  but 
it  is  only  'questions  or  propositions  of  law'  which  they  are 
authorized  to  certify.  And  such  questions  must  be,  as 
held  in  the  case  just  cited,  'distinct  questions  or  proposi- 
tions of  law,  unmixed  with  questions  of  fact,  or  of  mixed 
law  and  fact.'  It  is  not  always  easy  to  draw  the  line,  for, 
in  order  to  present  a  distinct  question  of  law,  it  may  some- 
times be  necessary  to  present  many  facts  upon  which  that 
question  is  based ;  but  care  must  always  be  taken  that,  un- 
der the  guise  of  certifying  questions,  the  courts  of  appeals 
do  not  transmit  the  whole  case  to  us  for  consideration."56 

The  form  of  this  certificate  is  prescribed  by  rule  37  57  of 
the  United  States  Supreme  Court,  as  follows: 

"Where,  under  section  239  of  the  act  entitled  'An  act  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary/ 
approved  March  3,  1911,  chapter  231,  a  circuit  court  of  ap- 
peals shall  certify  to  this  court  a  question  or  proposition 
of  law  concerning  which  it  desires  the  instruction  of  this 


56  WARNER  v.  NEW  ORLEANS,  167  TJ.  S.  474,  475,  17  Sup.  Ct. 
892,  42  L.  Ed.  239.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  SSj;  Cent. 
Dig.  §  1021. 

57  32  Sup.  Ct.  xiv. 


§  181)         APPEALS  FEOM  CIRCUIT  COURTS  OF  APPEALS  517 

court  for  its  proper  decision,  the  certificate  shall  contain  a 
proper  statement  of  the  facts  on  which  such  question  or 
proposition  of  law  arises." 

The  Supreme  Court  has  repeatedly  held  that  this  certif- 
icate should  present  separate,  independent  propositions  of 
law,  and  show  that  the  court  desired  instruction  upon  such 
questions,  and  that  it  could  not  be  used  for  certifying  up 
questions  involving  an  examination  of  the  entire  record,  al- 
though the  Supreme  Court  may,  if  it  desires,  require  the 
whole  record  to  be  sent  up,  but  that  must  be  the  act  of  the 
Supreme  Court,  not  of  the  circuit  court  of  appeals.88 

The  Supreme  Court  has  also  said  that  a  good  analogy  to 
follow  in  the  framework  of  these  certificates  is  the  old  cer- 
tificate of  division  of  opinion,  in  use  before  these  more 
recent  provisions  regulating  appeals.59 

The  issuing  of  this  certificate  is  discretionary  with  the 
circuit  court  of  appeals,  and  it  should  issue  only  before  a 
decision  in  the  case,  and  when  the  court  entertains  a  real 
doubt.60 

The  facts  to  be  embodied  in  such  a  certificate  are  not 
mere  matters  of  evidence,  but  the  ultimate  facts  necessary 
for  a  right  understanding  of  the  question  involved.01  The 
cases  referred  to  in  the  footnote  to  this  sentence  contain 
forms  of  such  certificate.82 

5 s  Cincinnati,  H.  &  D.  R.  Co.  v.  McKeen.  149  U.  S.  259,  13  Sup. 
Ct.  840,  37  L.  Ed.  725 ;  Hallowell  v.  U.  S.,  209  U.  S.  101,  28  Sup.  Ct. 
498,  52  L.  Ed.  702.  See  "Courts:'  Dec.  Dig.  (Key-No.)  §  884;  Cent. 
Dig.  §  1021. 

B»  Graver  v.  Faurot,  162  U.  S.  435,  16  Sup.  Ct.  799,  40  L.  Ed.  1030; 
Felsenheld  v.  U.  S.,  186  U.  S.  126,  22  Sup.  Ct.  740,  46  L.  Ed.  1085. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  384,  386;  Cent.  Dig.  §§  1021, 
1021-10SO. 

oo  Louisville,  N.  A.  &  C.  R.  Co.  v.  Pope,  74  Fed.  1,  20  C.  C.  A.  253 ; 
German  Ins.  Co.  v.  Hearne,  118  Fed.  134,  55  C.  C.  A.  84;  Cella  v. 
Brown,  144  Fed.  742,  75  C.  C.  A.  608.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  384;  Cent.  Dig.  §  1021. 

«i  Sigafus  v.  Porter,  85  Fed.  689,  29  C.  C.  A.  391.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  S8J, ;  Cent.  Dig.  §  1021. 

«z  New  Orleans  v.  Benjamin,  153  U.  S.  411,  14  Sup.  Ct.  905,  38  L. 
Ed.  764 ;  Folsom  v.  U.  S.,  160  U.  S.  121,  16  Sup.  Ct.  222,  40  L.  Ed. 


518  APPELLATE   JURISDICTION  (Ch.  22 

(&)  Review  by  Certiorari 

Section  240  of  the  Judicial  Code  provides  as  follows : 
"In  any  case,  civil  or  criminal,  in  which  the  judgment 
or  decree  of  the  circuit  court  of  appeals  is  made  final  by  the 
provisions  of  this  title,  it  shall  be  competent  for  the  Su- 
preme Court  to  require,  by  certiorari  or  otherwise,  upon 
the  petition  of  any  party  thereto,  any  such  case  to  be  cer- 
tified to  the  Supreme  Court  for  its  review  and  determina- 
tion, with  the  same  power  and  authority  in  the  case  as  if 
it  had  been  carried  by  appeal  or  writ  of  error  to  the  Su- 
preme Court." 

The  Supreme  Court  can  issue  a  certiorari  to  the  circuit 
court  of  appeals  only  in  the  cases  "hereinbefore  made 
final" ;  that  is,  in  the  cases  named  in  section  128  of  the  Judi- 
cial Code  as  final.  This  power  of  the  Supreme  Court  is  in- 
tended for  use  only  in  exceptional  circumstances.  It  has 
been  issued  only  in  questions  of  gravity  and  general  im- 
portance, or  in  cases  where  it  was  necessary  to  settle  a  con- 
flict of  decision  between  inferior  courts.63  It  has  been  is- 
sued in  several  admiralty  cases  involving  questions  arising 
out  of  the  international  rules  of  navigation,  and  in  ques- 
tions arising  out  of  treaties,  on  account  of  the  international 
character  of  these  questions.  It  has  been  refused,  how- 
ever, on  questions  of  mere  local  law — as,  for  instance,  the 
question  whether  the  law  of  master  and  servant  was  prop- 
erly applied  in  a  particular  case.64  It  may  be  issued  before 
a  final  decree  in  the  circuit  court  of  appeals,  if  the  case  is 
an  exceptional  one,  but  it  is  issued  in  such  cases  with  great 

363;  U.  S.  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct.  294,  43  L.  Ed.  556; 
Cincinnati,  H.  &  D.  R.  Co.  v.  Thiebaud,  177  U.  S.  615,  20  Sup.  Ct. 
822,  44  L.  Ed.  911.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  384;  Cent. 
Dig.  §  1021. 

ea  EX  parte  Lau  Ow  Bew,  141  U.  S.  583,  12  Sup.  Ct.  43,  35  L.  Ed. 
868 ;  Columbus  Watch  Co.  v.  Bobbins,  148  U.  S.  266,  13  Sup.  Ct  594, 
37  L.  Ed.  445;  FORSYTH  v.  HAMMOND,  166  U.  S.  506,  17  Sup 
Ct.  665,  41  L.  Ed.  1095.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  383. 

e*  In  re  Woods,  143  tJ.  S.  202,  12  Sup.  Ct  417,  36  L.  Ed.  125.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  383. 


§  181)         APPEALS  FROM  CIRCUIT  COUET8  OF  APPEALS  519 

reluctance.85  It  will  not  be  issued  in  a  case  where  the  cir- 
suit  court  of  appeals  itself  had  no  jurisdiction.66 

If  issued  on  the  ground  that  an  important  question  is 
involved,  and  it  turns  out  that  such  is  not  the  case,  the  Su- 
preme Court  will  dismiss  the  proceeding  without  consider- 
ing the  merits.67 

As  the  statute  provides  that  such  a  case,  when  certified, 
goes  to  the  Supreme  Court,  with  the  same  power  and  au- 
thority in  the  case  as  if  it  had  been  carried  by  appeal  or 
writ  of  error,  it  follows  that  only  errors  complained  of  by 
the  petitioner  can  be  considered  by  the  Supreme  Court,  and 
that  the  party  who  has  applied  for  the  writ  cannot  complain 
of  any  errors  against  him.68 

When  issued  to  a  circuit  court  of  appeals,  after  a  second 
appeal  to  the  circuit  court  of  appeals  from  the  trial  court, 
it  brings  up  the  entire  case.69  No  limitation  is  expressly 
provided  for  the  time  when  this  writ  may  issue,  but  it  has 
been  held  that  the  court  will  apply  the  limitation  of  one 
year  to  direct  appeals  from  the  circuit  court  of  appeals  by 
analogy,  and  the  writ  will  issue  though  the  circuit  court 
of  appeals  has  already  sent  its  mandate  down  to  the  lower 
court.70 

«5  American  Const.  Co.  v.  Jacksonville,  T.  &  K.  W.  Ry.  Co.,  148  U. 
S.  372,  385,  13  Sup.  Ct.  158,  37  L.  Ed.  486;  FORSYTH  v.  HAM- 
MOND, 166  U.  S.  506,  17  Sup.  Ct.  665,  41  L.  Ed.  1095.  Bee  "Courts," 
Dec.  Dig.  (Key-No.)  §  383. 

««  Good  Shot  v.  U.  S.,  179  U.  S.  87,  21  Sup.  Ct.  33,  45  L.  Ed.  101. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  383. 

"TJ.  S.  v.  Rimer,  220  U.  S.  547,  31  Sup.  Ct  596,  55  L.  Ed.  578. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  383. 

es  Hubbard  v.  Tod,  171  U.  S.  474,  19  Sup.  Ct  14,  43  L.  Ed.  246. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  383. 

«»  Panama  R.  Co.  v.  Napier  Shipping  Co.,  166  U.  S.  280,  17  Sup.  Ct. 
572,  41  L.  Ed.  1004.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  383. 

TO  The  Conqueror,  166  U.  S.  110,  17  Sup.  Ct.  510,  41  L.  Ed.  937. 
This  was  decided  before  the  enactment  of  the  Judicial  Code,  which 
omits  this  one-year  limitation.  But  there  is  no  danger  that  the  Su- 
preme Court  will  grant  belated  applications  for  the  writ  Ayres  v. 
Polsdorfer,  187  U.  S.  585,  23  Sup.  Ct.  196,  47  L.  Ed.  314;  Bonin  v. 


520  APPELLATE   JURISDICTION  (Ch.  22 

It  is  an  interesting  question  whether  the  Supreme  Court 
can  issue  the  writ  in  any  case  of  which  the  court  of  appeals 
has  jurisdiction,  and  there  is  some  general  language  in 
two  of  its  decisions  implying  that  its  power  to  issue  the 
writ  is  practically  coextensive  with  the  appellate  jurisdic- 
tion of  the  circuit  court  of  appeals.71  But  the  language  of 
the  paragraph  conferring  the  right  to  issue  the  writ  seems 
very  clearly  to  limit  it  to  those  cases  "hereinbefore  made 
final";  that  is,  to  cases  depending  on  diverse  citizenship, 
or  arising  under  the  patent  laws,  the  copyright  laws,  the 
revenue  laws,  or  the  criminal  laws,  and  in  admiralty  cases. 
Hence  important  questions  pending  in  a  lower  court  may 
be  out  of  the  reach  of  the  Supreme  Court  entirely.  If  they 
are  not  included  in  the  class  of  cases  "hereinbefore  made 
final,"  and  involve  less  than  a  thousand  dollars,  they  cannot 
be  reached  by  a  certiorari,  and  they  cannot  be  taken  from 
the  circuit  court  of  appeals  by  direct  appeal.  If  they  do 
not  involve  any  of  the  questions  mentioned  in  section  238, 
they  could  not  be  taken  to  the  Supreme  Court  direct  from 
the  courts  of  original  jurisdiction.  For  instance,  a  civil 
suit  by  the  United  States  for  an  amount  less  than  a  thou- 
sand dollars  would  seem  to  be  beyond  the  reach  of  the  Su- 
preme Court,  no  matter  how  important  the  construction  of 
the  statute  might  be  on  which  the  right  of  recovery  would 
hinge. 

The  refusal  of  the  writ  does  not  imply  an  affirmance.72 

(c)  By  Appeal  or  Writ  of  Error 

Section  241  of  the  Judicial  Code  reads: 

"In  any  case  in  which  the  judgment  or  decree  of  the  cir- 
cuit court  of  appeals  is  not  made  final  by  the  provisions  of 

Gulf  Co.,  198  U.  S.  115,  25  Sup.  Ct.  608,  49  L.  Ed.  970.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  383. 

71  Lau  Ow  Bew  v.  U.  S.,  144  U.  S.  47,  12  Sup.  Ct.  517,  3G  L.  Ed. 
340;  FORSYTH  v.  HAMMOND,  166  U.  S.  506,  17  Sup.  Ct  665,  41 
L.  Ed.  1095.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  883. 

72  Anderson  v.  Moyer  (D.  C.)   193  Fed.  499.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  888. 


§  181)         APPEALS  FROM  CIRCUIT  COURTS  OF  APPEALS  521 

this  title,  there  shall  be  of  right  an  appeal  or  writ  of  error 
to  the  Supreme  Court  of  the  United  States  where  the  mat- 
ter in  controversy  shall  exceed  one  thousand  dollars,  be- 
sides costs." 

The  question  what  cases  are  final,  and  what  are  not,  has 
been  touched  upon  in  the  previous  chapter,  in  connection 
with  the  jurisdiction  of  the  circuit  court  of  appeals. 

The  rules  regulating  the  course  of  appeal  in  this  class  of 
questions  are  summarized  in  a  recent  decision  of  the  Su- 
preme Court  to  the  effect  that  the  decision  of  the  circuit 
court  of  appeals  is  final  if  the  jurisdiction  of  the  trial  court 
was  first  invoked  on  the  ground  of  diverse  citizenship. 
If,  on  the  other  hand,  the  jurisdiction  was  first  invoked  on 
the  ground  of  diverse  citizenship,  and  a  constitutional  ques- 
tion subsequently  arises,  the  case  can  go  either  to  the  cir- 
cuit court  of  appeals  or  to  the  Supreme  Court,  but  not  to 
both.  If  the  jurisdiction  of  the  trial  court  was  invoked 
both  on  the  ground  of  diverse  citizenship  and  a  federal 
question  (not  necessarily  a  constitutional  question),  then 
the  jurisdiction  of  the  circuit  court  of  appeals  is  not  final.78 
On  the  other  hand,  a  decree  on  a  petition  of  intervention  in 
an  equity  suit  against  a  receiver  for  personal  injuries  is  re- 
viewable  by  the  circuit  court  of  appeals  where  the  jurisdic- 
tion in  the  main  suit  depended  on  diverse  citizenship,  but, 
if  an  independent  common-law  suit  had  been  brought 
against  the  receiver,  then  it  would  not  be  final,  as  the  ju- 
risdiction in  such  case  would  not  be  based  on  diverse  citi- 
zenship.74 So,  too,  where  the  jurisdiction  was  invoked  on 

73  HUGULET  MFG.  CO.  v.  GALETON  COTTON  MILLS,  184  U. 
S.  290,  22  Sup.  Ct.  452,  46  L.  Ed.  546.  See,  also,  Henningsen  v.  U. 
S.  Fidelity  &  Guaranty  Co.,  208  U.  S.  404,  28  Sup.  Ct.  389,  52  L. 
Ed.  547 ;  Standard  Paint  Co.  v.  Trinidad  Asphalt  Mfg.  Co.,  220  U.  S. 
446,  31  Sup.  Ct.  456,  55  L.  Ed.  536 ;  Louisville  &  N.  R.  Co.  v.  F.  W. 
Cook  Brewing  Co.,  223  U.  S.  70,  32  Sup.  Ct.  189,  56  L.  Ed.  355,  ante, 
p.  521.  See  "Courts,"  Dec.  Dig.  (Key-No^  §  382;  Cent.  Dig.  §  1020. 

7*  Rouse  v.  Hornsby,  161  U.  S.  588,  16  Sup.  Ct.  610,  40  L.  Ed.  817; 
Shulthis  v.  McDougal,  225  U.  S.  561,  32  Sup.  Ct.  704,  56  L.  Ed.  1205. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382;  Cent.  Dig.  §  1020. 


522  APPELLATE    JURISDICTION  (Ch.  22 

the  ground  of  diverse  citizenship,  but  the  case  was  dis- 
missed because  the  suit  was  by  an  assignee  in  a  case  where 
his  assignor  could  not  have  sued,  the  decision  of  the  circuit 
court  of  appeals  was  final,  for  it  depended  in  the  first  in- 
stance on  diverse  citizenship,  though  it  did  not  come  with- 
in a  well-recognized  exception.76 

Where  a  suit  originally  depended  on  diverse  citizenship, 
a  federal  question  is  not  raised  by  the  charge  that  a  state 
officer  erroneously  construed  a  state  law  so  as  to  deprive 
complainants  of  their  property  without  due  process  of  law, 
and  to  deny  them  the  equal  protection  of  the  laws,  for  the 
act  complained  of  in  such  case  is  not  the  state  law  itself, 
but  the  erroneous  action  of  an  officer  under  it.76 

A  suit  against  a  railway  for  loss  of  a  registered  package 
from  the  mails  by  negligence  raises  no  federal  question, 
and,  if  the  trial  court  acquire  jurisdiction  by  reason  of  di- 
verse citizenship,  the  appeal  would  go  to  the  circuit  court 
of  appeals  alone.77  •  On  the  other  hand,  a  suit  against  a  cor- 
poration claiming  its  charter  by  act  of  Congress  involves 
a  federal  question,  and  hence  the  decision  of  the  circuit 
court  of  appeals  is  not  final.78  So,  too,  a  suit  against  a 
marshal  for  a  wrongful  attachment  raises  a  federal  ques- 
tion, as  it  involves  his  official  acts,  and  the  decision  of  the 
circuit  court  of  appeals  is  not  final.79  So  a  suit  on  a  clerk's 

75  Benjamin  v.  New  Orleans,  169  U.  S.  161,  18  Sup.  Ct.  298,  42  L. 
Ed.  700.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  882;  Cent.  Dig.  §  1020, 

76  Arbuckle  v.  Blackburn,  191  U.  S.  405,  24  Sup.  Ct.  148,  48  L.  Ed. 
239.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382. 

77  Bankers'  Mut.  Casualty  Co.  v.  Minneapolis,  St.  P.  &  S.  Ste.  M. 
Ry.  Co.,  192  U.  S.  371,  24  Sup.  Ct.  325,  48  L.  Ed.  484.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  382;  Cent.  Dig.  §§  1011-1020. 

7  s  Northern  Pac.  R.  Co.  v.  Amato,  144  U.  S.  465,  12  Sup.  Ct.  740, 
36  L.  Ed.  506 ;  Union  Pac.  R.  Co.  v.  Harris,  158  U.  S.  326,  15  Sup. 
Ct.  843,  39  L.  Ed.  1003 ;  Texas  &  P.  R.  Co.  v,  Howell,  224  U.  S.  577, 
32  Sup.  Ct.  601,  56  L.  Ed.  892,  ante,  pp.  237,  489.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  382;  Cent.  Dig.  §§  1011-1020. 

79  Sonnentheil  v.  Christian  Moerlein  Brewing  Co.,  172  U.  S.  401, 
19  Sup.  Ct.  233,  43  L.  Ed.  492.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
382;  Cent.  Dig.  §§  1011-1020. 


§  181)          APPEALS  FBOM  CIRCUIT  COURTS  OF  APPEALS  523 

bond  for  money  paid  into  court,  and  not  accounted  for  by 
him,  involving  the  right  of  litigants  to  proceed  on  such 
bond.80  So  a  suit  against  a  receiver  of  a  national  bank,  for 
he  is  an  officer  of  the  United  States.81  So  a  suit  by  a  for- 
eign state.82  So  a  suit  in  which  the  ground  of  jurisdiction 
was  not  only  diverse  citizenship,  but  an  alleged  infringe- 
ment of  a  trade-mark,  for  the  jurisdiction  in  such  case  does 
not  "depend  entirely"  upon  diverse  citizenship.88 

(d)  Appeals  under  the  Bankrupt  Act 

Section  252  of  the  Judicial  Code  provides: 
"The  Supreme  Court  of  the  United  States  is  hereby  in- 
vested with  appellate  jurisdiction  of  controversies  arising 
in  bankruptcy  proceedings,  from  the  courts  of  bankruptcy, 
from  which  it  has  appellate  jurisdiction  in  other  cases;  and 
shall  exercise  a  like  jurisdiction  from  courts  of  bankruptcy 
not  within  any  organized  circuit  of  the  United  States  and 
from  the  supreme  court  of  the  District  of  Columbia. 

"An  appeal  may  be  taken  to  the  Supreme  Court  of  the 
United  States  from  any  final  decision  of  a  court  of  appeals 
allowing  or  rejecting  a  claim  under  the  laws  relating  to 
bankruptcy,  under  such  rules  and  within  such  time  as  may 

so  Howard  v.  U.  S.,  Use  of  Stewart,  184  U.  S.  676,  22  Sup.  Ct  543, 
46  L.  Ed.  754.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  38%;  Cent.  Dig.  §§ 
1011-1020. 

siAuten  v.  United  States  Nat  Bank,  174  U.  S.  125,  19  Sup.  Ct 
628,  43  L.  Ed.  920.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382;  Cent. 
Dig.  §§  1011-1020. 

sz  Colombia  v.  Cauca  Co.,  190  U.  S.  524,  23  Sup.  Ct  704,  47  L.  Ed. 
1159.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382;  Cent.  Dig.  §§  1011- 
1020. 

ss  Warner  v.  Searle  &  Herein  Co.,  191  U.  S.  195,  24  Sup.  Ct.  79, 
48  L.  Ed.  145.  Since  the  above  decision  the  act  of  February  20,  1905, 
makes  the  decision  of  the  circuit  court  of  appeals  final  in  suits  for 
infringement  of  trade-marks.  Hutchinson  Pierce  &  Co.  v.  Loewy, 
217  U.  S.  457,  30  Sup.  Ct  613,  54  L.  Ed.  838.  But  the  act  does  not 
apply  where  other  questions  than  mere  infringement  are  involved, 
such  as  the  issue  of  unfair  competition.  Standard  Paint  Co.  v. 
Trinidad  Asphalt  Mfg.  Co.,  220  U.  S.  446,  31  Sup.  Ct.  456,  55  L.  Ed. 
536.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382;  Cent.  Dig.  §§  1011- 
1020. 


524  APPELLATE    JURISDICTION  (Ch.  22 

be   prescribed  by    said   Supreme   Court,    in  the  following 
cases  and  no  other: 

"First.  Where  the  amount  in  controversy  exceeds  the 
sum  of  two  thousand  dollars,  and  the  question  involved  is 
one  which  might  have  been  taken  on  appeal  or  writ  of  er- 
ror from  the  highest  court  of  a  state  to  the  Supreme  Court 
of  the  United  States;  or 

"Second.  Where  some  justice  of  the  Supreme  Court  shall 
certify  that  in  his  opinion  the  determination  of  the  ques- 
tion involved  in  the  allowance  or  rejection  of  such  claim  is 
essential  to  a  uniform  construction  of  the  laws  relating  to 
bankruptcy  throughout  the  United  States. 

"Controversies  may  be  certified  to  the  Supreme  Court  of 
the  United  States  from  other  courts  of  the  United  States, 
and  the  former  court  may  exercise  jurisdiction  thereof, 
and  may  issue  writs  of  certiorari  pursuant  to  the  provisions 
of  the  United  States  laws  now  in  force  or  such  as  may  be 
hereafter  enacted."  8* 

Where  an  order  had  been  made  postponing  a  claim  to 
another,  from  which  no  appeal  was  taken,  the  question 
whether  this  order  was  properly  construed  by  the  referee 
and  court  in  carrying  out  their  duties  of  administration  was 
not  one  from  which  an  appeal  would  lie.85  The  only  ap- 
peal from  an  order  refusing  a  discharge  is  to  the  circuit 
court  of  appeals.  Its  action  cannot  be  reviewed  by  the 
Supreme  Court.86 

84  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45,  48  L. 
Ed.  116.     See  "Bankruptcy,"  Dec.  Dig*  (Key-No.)  §§  448,  453;  Cent. 
Dig.  §  914. 

85  Wynkoop-Hallenbeck-Crawford  Co.  v.    Gaines,  227  U.   S.  4,  33 

Sup.  Ct.  214,  57  L.  Ed. .    See  "Bankruptcy,"  Dec.  Dig.  (Key-No.) 

§§  448,  453. 

SB  James  v.  Stone  &  Co.,  227  U.  S.  410,  33  Sup.  Ct.  351,  57  L.  Ed. 
— .  See  "Bankruptcy,"  Dec.  Dig.  (Key-No.)  §§  448,  453;  Cent.  Dig. 
§  914. 


§  182)  APPEALS  FROM   TERRITOBIAL  COURTS  525 

APPEALS  FROM  COURTS  OF  THE  TERRITORIES 
OR  DEPENDENCIES 

182.  A  limited  class  of  cases  may  be  taken  to  the  Supreme 
Court  from  certain  courts  of  Porto  Rico,  Hawaii, 
Alaska  and  the  Philippines. 

As  all  the  territories  comprised  within  the  borders  of  the 
United  States  proper  are  now  states,  the  enactments  as  to 
territorial  courts  lose  their  importance.  But  there  are  spe- 
cial provisions  as  to  the  dependencies. 

As  to  Porto  Rico,  section  244  of  the  Judicial  Code  allows 
a  review  in  the  Supreme  Court  of  copyright,  constitutional 
or  treaty  questions  or  claims  of  -authority  under  acts  of 
Congress,  without  regard  to  the  sum  or  value  of  the  mat- 
ter in  dispute,  and  in  all  other  cases  involving  more  than 
five  thousand  dollars. 

As  to  Hawaii,  section  246  of  the  Judicial  Code  allows  a 
right  of  review  of  its  supreme  court  in  the  same  class  of 
cases  in  which  the  Supreme  Court  of  the  United  States 
would  have  a  right  of  review  of  the  decisions  of  a  state 
court,  and  also  in  cases  involving  over  five  thousand  dol- 
lars. 

As  to  Alaska,  section  247  of  the  Judicial  Code  gives  a 
right  of  review  to  the  Supreme  Court  in  prize  cases,  con- 
stitutional questions,  or  treaty  questions. 

As  to  the  Philippines,  section  248  of  the  Judicial  Code 
gives  a  right  of  review  to  the  Supreme  Court  of  constitu- 
tional questions,  questions  involving  any  statute,  treaty, 
title,  right,  or  privilege  of  the  United  States,  and  also  cases 
involving  over  twenty-five  thousand  dollars  in  amount,  or 
land  suits  involving  over  that  sum  in  value.81 

87  Harty  v.  Municipality  of  Victoria,  226  U.  S.  12,  33  Sup.  Ct.  4, 
57  L.  Ed. .  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  387. 


526  APPELLATE    JURISDICTION  (Ch.  22 

APPEALS  FROM  THE  COURT  OF  APPEALS  OF 
THE  DISTRICT  OF  COLUMBIA 

183.  The  Supreme  Court  has  jurisdiction  to  review  deci- 
sions of  the  court  of  appeals  of  the  District  of 
Columbia  only  in  cases  involving  constitutional, 
international,  or  constructional  questions,  but  may 
bring  up  other  cases  by  certiorari. 

The  appellate  jurisdiction  of  the  Supreme  Court  over  the 
court  of  appeals  of  the  District  of  Columbia  is  regulated 
by  sections  250  ar.d  251  of  the  Judicial  Code.  The  first 
of  these  sections  is  based  on  the  idea  of  giving  a  review 
only  of  the  class  of  questions  which  could  be  brought  up 
from  inferior  courts  of  the  states  or  of  the  United  States. 
The  first  four  classes  named  are  the  same  as  those  named 
in  section  238  providing  for  a  review  of  the  decisions  of  the 
district  courts.  The  fifth  adds  cases  of  federal  questions 
arising  in  the  state  courts  which  might  be  taken  to  the  Su- 
preme Court  as  provided  in  section  237  of  the  Judicial 
Code.  And  the  sixth  and  last  gives  a  right  of  review  where 
the  construction  of  any  law  of  the  United  States  is  drawn 
in  question  by  the  defendant.  All  other  decisions  are  final, 
except  that  under  section  251  the  Supreme  Court  may  issue 
a  certiorari  to  bring  up  any  decision  in  such  case.  This 
section  also  allows  the  court  of  appeals  of  the  District  to 
certify  questions  of  law  up  to  the  Supreme  Court ;  and  sec- 
tion 250  requires  only  the  question  of  jurisdiction  to  be 
certified  up  when  the  appeal  is  claimed  on  that  ground. 

These  provisions  radically  change  the  pre-existing  law, 
and  assimilate  appeals  in  the  District  to  those  in  the  states. 


§  186)  REVIEW   OF  STATE  COURT  DECISIONS  527 

APPEALS  FROM  THE  COURT  OF  CLAIMS 

184.  Under  section   242  of  the 'Judicial  Code,  judgments 

against  the  United  States  in  any  case  in  which  the 
amount  in  controversy  exceeds  three  thousand 
dollars,  and  judgments  forfeiting  a  plaintiff's  claim 
for  fraud  under  the  provisions  of  section  172  of  the 
Judicial  Code  are  reviewable  by  the  Supreme 
Court. 

APPEALS  FROM  THE  COMMERCE  COURT 

185.  Under  section  210  of  the  Judicial  Code,  appeals  from 

the  commerce  court  lie  to  the  Supreme  Court  un- 
der rigid  provisions  as  to  promptness  and  as  to 
superseding  the  judgment  appealed  from.* 

REVIEW  OF  STATE  COURT  DECISIONS 

186.  In  order  to  insure  the  proper  administration  of  federal 

laws,  the  Supreme  Court  is  given  jurisdiction  to 
review  by  writ  of  error  the  final  decisions  of  the 
state  court  which  is  the  court  of  last  resort  in  the 
special  instance,  in  cases  involving  any  question 
of  conflict  between  state  and  federal  laws  or  au- 
thority, where  such  decision  is  against  the  federal 
law  or  authority;  that  is,  in  cases  involving  con- 
stitutional questions  as  to  the  relative  boundaries 
of  state  and  federal  rights. 

The  right  to  review  decisions  of  state  courts  is  given  by 
section  237  of  the  Judicial  Code,  which  reads  as  follows : 

"A  final  judgment  or  decree  in  any  suit  in  the  highest 
court  of  a  state  in  which  a  decision  in  the  suit  could  be 
had,  where  is  drawn  in  question  the  validity  of  a  treaty  or 

*  Repealed  by  the  act  of  October  22,  1913,  post,  p.  701. 


528  APPELLATE   JURISDICTION  (Ch.  22 

statute  of,  or  an  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  their  validity;  or  where 
is  drawn  in  question  the  validity  of  a  statute  of,  or  an  au- 
thority exercised  under  any  state,  on  the  ground  of  their 
being  repugnant  to  the  Constitution,  treaties,  or  laws  of 
the  United  States,  and  the  decision  is  in  favor  of  their  va- 
lidity; or  where  any  title,  right,  privilege,  or  immunity  is 
claimed  under  the  Constitution,  or  any  treaty  or  statute  of, 
or  commission  held  or  authority  exercised  under,  the  Unit- 
ed States,  and  the  decision  is  against  the  title,  right,  privi- 
lege, or  immunity  especially  set  up  or  claimed,  by  either 
party,  under  such  Constitution,  treaty,  statute,  commission, 
or  authority,  may  be  re-examined  and  reversed  or  affirmed 
in  the  Supreme  Court  upon  a  writ  of  error.  The  writ 
shall  have  the  same  effect  as  if  the  judgment  or  decree  com- 
plained of  had  been  rendered  or  passed  in  a  court  of  the 
United  States. 

"The  Supreme  Court  may  reverse,  modify,  or  affirm  the 
judgment  or  decree  of  such  state  court,  and  may,  at  their 
discretion,  award  execution  or  remand  the  same  to  the  court 
from  which  it  was  removed  by  the  writ" 

This  is  the  famous  twenty-fifth  section  of  the  judiciary 
act  of  1789.  Its  validity  and  policy  were  not  sustained 
without  contest. 


SAME— CONSTITUTIONALITY 

187.  The  right  of  Congress  to  give  a  review  to  the  Supreme 
Court  of  decisions  of  the  state  courts  on  federal 
questions,  though  once  vigorously  contested,  is  set- 
tled by  decisions. 

After  exercising  this  right  of  review  without  question  in 
several  cases,  it  was  vigorously  denied  by  the  supreme 
court  of  appeals  of  Virginia.  In  a  case  where  its  decision 
was  reversed,  and  where  the  United  States  Supreme  Court 


§  187)  REVIEW   OF   STATE   COURT   DECISIONS  529 

sent  down  the  mandate  directing  them  to  enter  judgment 
in  accordance  with  the  views  of  the  federal  court,  the  Vir- 
ginia court  refused  to  obey  the  mandate,  and  entered  upon 
its  records  an  order  reciting  that  it  did  so  because  it  did 
not  consider  that  the  Constitution  authorized  Congress  to 
give  a  right  of  review  of  the  decisions  of  the  state  courts.88 
Thereupon  the  Supreme  Court  reviewed  the  grounds  of 
the  refusal  of  the  Virginia  court,  and  decided  in  favor  of  the 
constitutionality  of  the  act.89  The  ground  on  which  the 
Virginia  court  denied  the  validity  of  the  act  was  that  the 
federal  Constitution,  properly  construed,  only  authorized 
the  right  of  review  of  decisions  of  federal  courts;  that  the 
description  of  the  judicial  power  contained  in  the  Constitu- 
tion evidently  only  referred  to  the  jurisdiction  of  the  fed- 
eral courts ;  that  the  states,  in  the  powers  reserved  to  them, 
were  as  supreme  as  the  federal  government  in  the  powers 
delegated  to  it;  that  the  two/ therefore,  were  co-ordinate 
and  the  state  courts  not  inferior,  but  co-ordinate,  to  the 
federal  courts.  This  view,  however,  was  contested,  not 
only  in  the  same  case,  but  in  subsequent  decisions  of  the 
Supreme  Court,  and  must  be  considered  as  settled.90 

ss  Hunter  v.  Martin,  4  Munf.  (18  Va.)  1.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  391;  Cent.  Dig.  §§  1045,  1092. 

89  Martin  v.  Hunter,  1  Wheat.  304,  4  L.  Ed.  97.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  391;  Cent.  Dig.  §§  1045,  1092. 

»o  Cohens  v.  Virginia,  6  Wheat.  2G4,  5  L.  Ed.  257 ;  WILLIAMS  v. 
BRUFFY,  102  U.  S.  248,  26  L.  Ed.  135.  To  the  student  of  our  politi- 
cal history,  the  opinion  of  Judge  Roane  in  the  Virginia  court  of  ap- 
peals, denying  the  validity  of  the  act,  and  the  opinion  of  Chief  Jus- 
tice Marshall  in  Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257,  up- 
holding it,  must  ever  remain  models  of  powerful  judicial  reasoning; 
and  the  opinion  of  Judge  Roane  is  well  worthy,  not  only  from  its 
logical  force,  but  its  literary  excellence,  to  be  put  in  the  same  class 
with  the  decisions  of  the  great  Chief  Justice  himself.  The  opinion 
of  Mr.  Justice  Story  in  the  case  of  Martin  v.  Hunter  does  not 
seem,  in  the  judgment  of  the  author,  to  be  equal  to  either  of  the 
others.  Certainly,  his  contention  that  the  federal  Constitution  re- 
quired Congress  to  confer  all  the  judicial  power  granted  by  the 
Constitution  upon  some  courts  has  not  been  sustained  by  the  subse- 
quent legal  history  of  our  country,  as  there  are  many  cases  of  federal 
HUGHES  FED.PB.(2D  ED.)— 34 


530  APPELLATE    JURISDICTION  (Ch.  22 


SAME— THE  PROCEEDINGS  REVIEWABLE 

188.  Any  proceeding  which  is  a  suit  in  the  state  court  is 
reviewable  under  this  provision  of  law,  if  it  in- 
volves any  of  the  questions  therein  mentioned.  It 
is  the  object  of  the  act  to  protect  federal  constitu- 
tional rights,  and  whether  they  arise  in  an  ordi- 
nary suit,  or  in  an  extraordinary  proceeding,  like 
habeas  corpus  or  mandamus,  provided  only  they 
are  a  court  proceeding,  they  are  reviewable.91 

It  has  been  seen  in  another  connection  that  there  are 
many  court  proceedings  which  are  yet  not  suits  at  law  or 
in  equity,  in  the  sense  in  which  that  term  is  used  when  dis- 
cussing the  original  jurisdiction  of  the  federal  courts.  That 
criterion,  however,  does  not  apply  to  these  cases  in  the 
state  courts,  and  the  term  is  used  in  a  wider  sense  than  in 
discussing  the  character  of  proceedings  cognizable  in  the 
federal  trial  courts.92 

There  is  no  monetary  limit  to  the  right  of  review  in  these 
cases,  the  question  itself  being  of  sufficient  importance,  no 
matter  how  small  the  amount  involved ;  and,  as  a  matter  of 
fact,  many  of  the  cases  taken  to  the  Supreme  Court  under 
this  provision  have  involved  very  small  amounts.93 

jurisdiction  which  could  have  been  conferred  upon  the  federal  court, 
but  have  not  been.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  S91;  Cent. 
Dig.  §§  1045,  1092. 

siHartman  v.  Greenhow,  102  IT.  S.  672,  26  L.  Ed.  271;  American 
Exp.  Co.  v.  Michigan,  177  U.  S.  404,  20  Sup.  Ct.  695,  44  L.  Ed.  823. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  391;  Cent.  Dig.  §§  1045,  1092. 

92  Cases  supra. 

»3  Buel  v.  Van  Ness,  8  Wheat.  312,  5  L.  Ed.  624;  The  Paquete 
Habana,  175  U.  S.  677,  20  Sup.  Ct  290,  44  K  Ed.  320.  See  "Courts," 
Dec.  Dig.  (Key-No.)  §  894. 


§  189)  REVIEW   OF  STATE   COUBT  DECISIONS  531 

SAME— THE  COURTS  WHOSE  DECISIONS  ARE 
REVIEWABLE 

189.  The  language  of  the  act  is,  "The  highest  court  of  a 
state  in  which  a  decision  in  the  suit  could  be  had." 
This  means  the  court  having  final  jurisdiction  over 
the  special  question,  not  necessarily  the  state  court 
of  highest  rank. 

It  must,  however,  be  a  decision  of  a  court,  not  merely  an 
order  of  the  judge  at  chambers.94  It  means  the  last  court 
which  could  decide  the  special  question,95  but,  where  an  at- 
tempt is  made  to  review  under  this  provision  the  decision 
of  a  court  which  is  not  the  highest  court  of  the  state,  it 
must  be  shown  that  this  is  the  court  which  has  final  juris- 
diction of  the  special  question.  If  there  is  a  discretionary 
right  of  review  of  such  a  court  by  a  higher  court,  the  rec- 
ord must  show  that  the  party  has  exhausted  his  efforts  to- 
obtain  the  benefits  of  such  review  before  he  can  take  the 
case  up  from  the  lower  of  the  two  courts.96  If  an  appli- 
cation, however,  is  made  to  the  highest  court  of  a  state  for 
the  allowance  of  an  appeal,  and  that  court  refuses  it,  but 
retains  no  copy  of  the  record,  then  the  decision  should  go 
to  the  lower  court,  where  the  record  remains;  but  if  the 
appellate  court  acts  as  a  court,  and  refuses  the  appeal,  and" 
makes  an  entry  of  it  on  its  minutes,  and  retains  a  copy  of 
the  record,  then  the  appeal  should  go  to  the  higher  court. 9T 

94  McKnight  v.  James,  155  U.  S.  685,  15  Sup.  Ct  248,  39  L.  Ed. 
310.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  392;  Cent.  Dig.  £§  1046, 
1047. 

95  Missouri,  K.  &  T.  R.  Co.  v.  Elliott,  184  U.  S.  530,  22  Sup.  Ct 
446,  46  L.  Ed.  673.    See  "Courts,"  Dec.  Dig.  (Ken-~So.)  §  39  >;  Cent. 
Dig.  §§  1046,  1047- 

»«  Gregory  v.  McVeigh,  23  Wall.  294,  23  L.  Ed.  156;  Fisher  v. 
Perkins,  122  U.  S.  522,  7  Sup.  Ct.  1227,  30  L.  Ed.  1192;  Mullen  v. 
Western  Union  Beef  Co.,  173  U.  S.  116,  19  Sup.  Ct.  404,  43  L.  Ed. 
635.  See  "Courts,"  Dec.  Dig.  (Kcv-Xo.)  §  392;  Cent.  Dig.  §§  1046,  1047. 

97  POLLEYS  v.  BLACK  RIVER  IMPROVEMENT  CO.,  113  U.  S. 
81,  5  Sup.  Ct.  369,  28  L.  Ed.  938 ;  Stanley  v.  Schwalby,  162  U.  S.  255^ 


532  APPELLATE}   JURISDICTION  (Ch.  22 

The  writ  of  error  must  go  to  the  highest  state  court,  if 
it  has  jurisdiction  of  the  matter,  even  though,  as  a  matter 
of  fact,  it  is  a  foregone  conclusion  that  it  will  act  adversely, 
as  in  cases  of  second  appeals  on  questions  already  settled.98 

SAME— BY  WHOM  THE  RIGHT  OF  REVIEW  MAY 
BE  INVOKED 

190.  Only  the  party  actually  injuriously  affected  by  the  ad- 
verse decision  can  claim  such  a  right  of  review,  not 
third  parties  who  would  be  indirectly  interested  in 
an  adverse  decision  of  the  federal  question." 
Only  a  party  against  whose  federal  claim  the  decision  is 
rendered  can  appeal,  not  one  in  whose  favor  such 
a  decision  is  made.1 


SAME— CHARACTER  OF  QUESTIONS  RE- 
VIEWABLE 

191.  The  only  questions  re  viewable  under  this  section  are 
cases  of  conflicting  state  and  federal  rights,  viz.: 
(a)  Cases  where  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised  un- 
der, the  United  States,  and  the  decision  is  against 
the  validity. 

16  Sup.  Ct.  754,  40  L.  Ed.  960;  Bacon  v.  Texas,  163  U.  S.  207,  16 
Sup.  Ct.  1023,  41  L.  Ed.  132;  Wedding  v.  Meyler,  192  U.  S.  573,  24 
Sup.  Ct.  322,  48  L.  Ed.  570;  post,  p.  569.  See  "Courts,"  Dec.  Did. 
{Key-No.)  §  392;  Cent.  Dig.  §§  1046,  1047. 

98  GREAT  WESTERN  TELEGRAPH  CO.  v.  BURNHAM,  162  U. 
S.  339,  16  Sup.  Ct  850,  40  L.  Ed.  991.     See,  also,  Louisiana  Naviga- 
tion Co.  v.  Oyster  Commission  of  La.,  226  U.  S.  99,  33  Sup.  Ct.  78, 

57  L.  Ed. .     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  892;  Cent.  Dig. 

§§  1046,  1047. 

99  Tyler  v.  Judges  of  Court  of  Registration,  179  U.  S.  405,  21  Sup. 
Ct.  206,  45  L.  Ed.  252 ;  Braxton  County  Court  v.  West  Virginia,  208 
U.  S.  192,  28  Sup.  Ct.  275,  52  L.  Ed.  450.     See  "Courts,"  Dec.  Dig. 
{Key-No.)  §  395;  Cent.  Dig.  §§  1078,  1079. 

i  Ryan  v.  Thomas,  4  Wall.  603,  18  L.  Ed.  460 ;  Rutland  R.  Co.  v. 
Central  Vermont  R.  Co.,  159  U.  S.  630,  638,  16  Sup.  Ct.  113,  40  L.  Ed. 


§  191)  REVIEW   OF  STATE   COURT  DECISIONS  533 

(b)  Cases  where  is  drawn  in  question  the  validity  of  a 

statute  of,  or  an  authority  exercised  under,  any 
state,  on  the  ground  of  their  being  repugnant  to 
the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  their  validity. 

(c)  Cases  where  any  title,  right,  privilege,  or  immunity 

is  claimed  under  the  Constitution,  or  any  treaty  or 
statute  of,  or  commission  held  or  authority  exer- 
cised under,  the  United  States,  and  the  decision  is 
against  the  title,  right,  privilege,  or  immunity  spe- 
cially set  up  or  claimed  by  either  party  under  such 
Constitution,  treaty,  statute,  commission,  or  au- 
thority. 

The  character  of  the  question  decides  the  right  of  review, 
and  the  citizenship  of  the  parties  has  nothing  to  do  with  it.2 
It  is  equally  manifest  that  the  questions  reviewable  in  this 
manner  are  simply  federal  constitutional  questions — that 
is,  conflicts  of  state  and  federal  authority — and  that  ques- 
tions of  the  conflict  of  a  state  statute  with  a  state  con- 
stitution do  not  fall  under  any  of  these  classes.3  Nor  do 
mere  questions  of  construction,  either  of  the  federal  or 
state  laws,  come  under  any  of  these  classes,  where  no  ques- 
tion of  their  validity  is  involved.4  Nor  are  questions  of 

284.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  395;  Cent.  Dig.  §§  1078, 
1079. 

2  French  v.  Hopkins,  124  U.  S.  524,  8  Sup.  Ct.  589,  31  L.  Ed.  536; 
Barrington  v.  Missouri,  208  U.  S.  483,  27  Sup.  Ct.  582,  51  L.  Ed.  890. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§  10^9-1077. 

s  Missouri  ex  rel.  Hill  v.  Dockery,  191  U.  S.  165,  24  Sup.  Ct.  53, 
48  L.  Ed.  133 ;  Smith  v.  Jennings,  206  U.  S.  276,  27  Sup.  Ct  610,  51 
L.  Ed.  1061 ;  Kiernan  v.  City  of  Portland,  223  U.  S.  151,  32  Sup.  Ct 
231,  56  L.  Ed.  386.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  33.);  Cent. 
Dig.  §§  1049-1077. 

*  Choteau  v.  Marguerite,  12  Pet  507,  9  L.  Ed.  1174 ;  Iroquois 
Transp.  Co.  v.  Delaney  Forge  &  Iron  Co.,  205  U.  S.  354,  27  Sup.  Ct 
509,  51  L.  Ed.  836;  Smithsonian  Institution  v.  St.  John,  214  U.  S. 
19,  29  Sup.  Ct.  601,  53  L.  Ed.  892.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  394;  Cent.  Dig.  §§  1049-1077. 


534  APPELLATE   JURISDICTION  (Ch.  22 

general  law  thus  reviewable.5  The  questions,  in  order  to 
be  reviewable,  however,  must  be  sufficiently  open  to  doubt 
to  show  that  the  claim  is  bona  fide  and  with  some  color  of 
merit,  and  not  a  bare  assertion  of  an  obviously  unfounded 
one.6 

The  effect  of  a  proceeding  to  review  the  decision  of  the 
state  courts  under  this  section  is  simply  to  bring  up  feder- 
al questions  of  law.7  Even  in  a  chancery  case  only  ques- 
tions of  law  are  reviewable,  for  the  statute  provides  that 
the  decisions  of  the  state  courts  are  reviewable  only  by  writ 
of  error,  and  it  could  not  have  been  the  intention  to  give  a 
general  review  of  all  questions  of  law  and  fact  involved  in 
the  case  so  taken  up.8 

The  classes  of  questions  reviewable,  as  has  been  seen, 
subdivide  into  three.  The  first  of  these  is  where  the  valid- 
ity of  a  treaty  or  statute  or  authority  exercised  under  the 
United  States  is  questioned  in  the  state  court;  but  such  a 
federal  statute  or  authority  must  be  actually  drawn  in 
question,  and  no  review  lies  from  a  mere  decision  of  a  state 
court  construing  a  federal  statute.9  Hence  there  are  many 


s  Grame  v.  Mutual  Assur.  Co.,  112  TJ.  S.  273,  5  Sup.  Ct  150,  28  L. 
Ed.  716.  Nor  were  questions  of  pleading  involving  no  denial  of  a 
federal  right.  Brinkmeier  v.  Missouri  Pac.  R.  Co.,  224  U.  S.  268,  32 
Sup.  Ct.  412,  56  L.  Ed.  758.  See  "Courts,"  Dec.  Dig.  (Key-No.)  § 
394;  Cent.  Dig.  §§  1049-1077. 

6  Wabash  R.  Co.  v.  Flannigan,  192  U.  S.  29,  24  Sup.  Ct.  224,  48  L. 
Ed.  328 ;  Gring  v.  Ives,  222  U.  S.  365,  32  Sup.  Ct  167,  56  L.  Ed.  235 ; 
Deming  v.  Carlisle  Packing  Co.,  226  U.  S.  102,  83  Sup.  Ct  80,  57  L. 

Ed. .    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§  1049- 

1077. 

7  Chapman  &  D.  Land  Co.  v.  Bigelow,  206  U.   S.  41,  27  Sup.  Ct. 
679,  51  L.  Ed.  953.     See  "Courts,"  Dec.  Dig.  (Key-No  J  §  399;  Cent. 
Dig.  §§  1089-1090. 

s  EGAN  v.  HART,  165  U.  S.  188,  17  Sup.  Ct.  300,  41  L.  Ed.  680 ; 
Earling  v.  Ernigh,  218  U.  S.  27,  30  Sup.  Ct.  672,  54  L.  Ed.  915.  But 
it  may  be  necessary  to  look  into  questions  of  fact  to  ascertain  the 
federal  question  involved.  Cedar  Rapids  Gaslight  Co.  v.  City  of 
Cedar  Rapids,  223  U.  S.  655,  32  Sup.  Ct.  389,  56  L.  Ed.  594.  See 
"Courts,"  Dec.  Dig.  (Key-No.)  §  399;  Cent.  Dig.  §§  1089-1090. 

»  Kennard  v.  Nebraska,  186  U.  S.  304,  22  Sup.  Ct.  879,  46  L.  Ed. 


§  191)  REVIEW  OF  STATE   COURT   DECISIONS  535 

federal  questions  upon  which  the  state  courts  can  pass,  and 
over  which  the  federal  courts  have  no  right  of  review,  such 
as  questions  of  mere  construction,  not  appearing  on  the 
face  of  the  plaintiff's  pleading,  in  which  case,  as  has  been 
seen,  no  right  of  removal  exists,  or  questions  so  appearing 
in  cases  involving  less  than  three  thousand  dollars,  or  pro- 
ceedings not  amounting  to  suits,  in  which  cases,  also,  no 
right  of  removal  exists. 

The  second  of  these  classes  is  where  a  state  statute  is 
questioned  in  the  state  court  as  repugnant  to  the  federal 
Constitution  or  laws,  and  the  court  sustains  the  state  stat- 
ute. This  is  a  very  common  class  of  jurisdiction.  One  of 
the  most  frequent  instances  of  its  exercise  is  where  state 
laws  are  alleged  to  violate  the  constitutional  provisions 
against  impairing  the  obligation  of  contracts — a  provision 
applying  not  simply  to  the  acts  of  the  state  legislature,  but 
also  to  the  acts  of  any  subordinate  legislative  body,  like  a 
municipality,  but  not  the  acts  of  executive  or  judicial  offi- 
cers.10 Another  instance  is  the  question  whether  the  tak- 
ing of  property  under  a  state  statute  constitutes  a  taking 
for  public  use,  or  deprives  the  party  of  his  property  with- 
out due  process  of  law.11  The  third  class,  under  the  stat- 
ute, is  where  a  title,  right,  privilege,  or  immunity  is  claimed 
under  the  federal  Constitution  or  laws,  or  a  commission 
or  authority  exercised  under  the  United  States,  and  the  de- 
cision is  against  the  right  specially  set  up  or  claimed  by 

1175.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§  1049- 
1077. 

10  Williams  v.  Louisiana.  103  U.  S.  637,  26  L.  Ed.  595;  Citizens' 
Bank  v.  Parker,  192  U.  S.  73,  24  Sup.  Ct.  181,  48  L.  Ed.  346;  Grand 
Rapids  &  1.  R.  Co.  v.  Osborn,  193  U.  S.  17,  24  Sup.  Ct.  310,  48  L. 
Ed.  598;  Bacon  v.  Texas,  163  U.  S.  207,  16  Sup.  Ct.  1023,  41  L.  Ed. 
132;  State  of  Louisiana  ex  rel.  Hubert  v.  New  Orleans,  215  U.  S. 
170,  30  Sup.  Ct  40,  54  L.  Ed.  144.    See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  394;  Cent.  Dig.  §§  10 49-1077. 

11  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  17  Sup.  Ct.  56,  41 
L.  Ed.  369.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§ 
1049-1077. 


536  APPELLATE   JURISDICTION  (Ch.  22 

either  party.  This  also  is  a  very  common  exercise  of  the 
jurisdiction.  It  cannot  be  invoked,  however,  where  both 
parties  set  up  title  through  a  common  source  to  the  United 
States.12  It  covers,  however,  not  simply  questions  of  valid- 
ity or  supremacy  of  the  federal  Constitution  or  laws,  but 
also  authority  exercised  under  the  United  States — in  this 
respect  being  wider  than  the  clause  conferring  jurisdiction 
on  the  trial  courts  of  the  United  States  by  removal,  where 
only  questions  under  the  Constitution  or  laws  give  the 
right.13  The  question  whether  a  proceeding  in  a  state 
court  put  the  accused  twice  in  jeopardy,  contrary  to  the 
provisions  of  the  federal  Constitution,  raises  such  a  ques- 
tion.14 The  question  as  to  the  effect  of  a  sale  under  the 
bankrupt  law  is  such  a  question.15  So,  also,  the  question 
whether  a  party  is  entitled  to  a  removal  of  his  case  from 
the  state  court  under  the  provisions  of  the  removal  act.16 
So  rights  or  causes  of  action  claimed  under  the  national 
banking  law.17  So,  too,  the  question  whether  a  carrier 

12  California  ex  rel.  Hastings  v.  Jackson,  112  U.  S.  233,  5  Sup.  Ct. 
113,  28  L.  Ed.  712.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent. 
Dig.  §§  1049-1077. 

is  Carson  v.  Dunham,  121  U.  S.  421,  427,  7  Sup.  Ct.  1030,  30  L. 
Ed.  992.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§ 
1049-1077. 

i*  Keerl  v.  State  of  Montana,  213  U.  S.  135,  29  Sup.  Ct.  469,  53  L. 
Ed.  734.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§ 
1 049-1 077. 

is  Factors'  &  Traders'  Ins.  Co.  v.  Murphy,  111  U.  S.  738,  4  Sup. 
Ct  679,  28  L.  Ed.  582 ;  New  Orleans,  S.  F.  &  L.  R.  Co.  v.  Delamore, 
114  U.  S.  501,  5  Sup.  Ct  1009,  29  L.  Ed.  244.  So  the  denial  of  the 
right  of  a  trustee  in  bankruptcy  to  recover  assets  of  the  estate. 
Rector  v.  City  Deposit  Bank  Co.,  200  U.  S.  405,  26  Sup.  Ct.  289,  50 
L.  Ed.  527.  Compare  Corbett  v.  Craven,  215  U.  S.  125,  30  Sup.  Ct 
64,  54  L.  Ed.  122.  So  the  refusal  of  a  state  court  to  give  effect  to  a 
discharge.  Zavelo  v.  Reeves,  227  U.  S.  625,  33  Sup.  Ct.  365,  57  L. 

Ed. .  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§  1049- 

1077. 

IB  SOUTHERN  RY.  CO.  v.  ALLISON,  190  U.  S.  326,  23  Sup.  Ct 
713,  47  L.  Ed.  1078.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent. 
Dig.  §§  1049-1077. 

IT  McCorruick  v.  Market  Nat  Bank,  165  U.  S.  538,  17  Sup.  Ct  433, 


§  192)  REVIEW   OF   STATE  COURT   DECISIONS  537 

who  pays  duties  on  imports  exacted  under  a  federal  statute 
has  a  lien  against  the  owner  of  the  goods  for  reimburse- 
ment.18 


SAME— HOW  A   FEDERAL  QUESTION   MUST   BE 
RAISED  OR  SHOWN  BY  THE  RECORD 

192.  In  order  to  avail  of  the  right  to  review  the  action  of 
a  state  court  on  a  federal  question,  it  must  be 
raised  in  the  state  court  in  the  manner  in  which 
a  question  of  that  nature  should  be  raised  by  the 
state  practice,  and  the  record  must  show  this. 

If,  for  instance,  it  arises  in  connection  with  a  question 
of  evidence,  and  the  party  in  the  state  court  does  not  sea- 
sonably object  or  take  a  proper  bill  of  exceptions  to  the 
action  of  the  state  court,  where  a  bill  of  exceptions  is  nec- 
essary, and  therefore  the  state  Supreme  Court  decides  that 
the  question  cannot  be  considered,  because  not  properly 
raised,  the  benefit  of  the  question  is  lost.19  It  need  not 
necessarily  appear  in  the  pleadings,  and  in  fact  there  are 
many  questions  which  could  not  be  made  to  appear  by  the 
pleadings,  but  it  must  certainly  appear  somewhere  in  the 
record  that  the  point  was  made  and  insisted  upon.  On  this 
subject  Chief  Justice  Fuller  has  said: 

"As  the  validity  of  no  treaty  or  statute  of,  or  authority 
exercised  under,  the  United  States,  nor  of  a  statute  of,  or 
authority  exercised  under,  any  state,  was  drawn  in  question, 

41  L.  Ed.  817;  Talbot  v.  First  Nat.  Bank,  185  U.  S.  172,  22  Sup.  Ct. 
612,  46  L.  Ed.  857.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent. 
Dig.  §§  1049-1077. 

is  Wabash  R.  Co.  v.  Pearce,  192  U.  S.  179,  24  Sup.  Ct  231,  48  L. 
Ed.  397.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  394;  Cent.  Dig.  §§ 
1049-1077. 

i  o  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  23  Sup.  Ct.  375, 
47  L.  Ed.  480,  63  L.  R.  A.  33;  Thomas  v.  Iowa,  209  U.  S.  258,  28 
Sup.  Ct.  487,  52  L.  Ed.  782;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor, 
210  U.  S.  281,  28  Sup.  Ct  616,  52  L.  Ed.  1061.  See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  396;  Cent.  Dig.  §  1080. 


538  APPELLATE    JURISDICTION  (Ch.  22 

it  is  essential  to  the  maintenance  of  our  jurisdiction  that  it 
should  appear  that  some  title,  right,  privilege,  or  immunity 
under  the  Constitution  or  laws  of  the  United  States  was 
specially  set  up  or  claimed  in  the  state  court,  and  that  the 
decision  of  the  highest  court  of  the  state  in  which  such  de- 
cision could  be  had  was  against  the  title,  right,  privilege,  or 
immunity  so  set  up  or  claimed,  and  in  that  regard  certain 
propositions  must  be  regarded  as  settled : 

"(1)  That  the  certificate  of  the  presiding  judge  of  the 
state  court  as  to  the  existence  of  grounds  upon  which  our 
interposition  might  be  successfully  invoked,  while  always 
regarded  with  respect,  cannot  confer  jurisdiction  upon  this 
court  to  re-examine  the  judgment  below. 

"(2)  That  the  title,  right,  privilege,  or  immunity  must 
be  specially  set  up  or  claimed  at  the  proper  time  and  in  the 
proper  way. 

"(3)  That  such  claim  cannot  be  recognized  as  properly 
made  when  made  for  the  first  time  in  a  petition  for  rehear- 
ing after  judgment. 

"(4)  That  the  petition  for  the  writ  of  error  forms  no 
part  of  the  record  upon  which  action  is  taken  here. 

"(5)  Nor  do  the  arguments  of  counsel,  though  the  opin- 
ions of  the  state  courts  are  now  made  such  by  rule. 

"(6)  The  right  on  which  the  party  relies  must  have  been 
called  to  the  attention  of  the  court  in  some  proper  way,  and 
the  decision  of  the  court  must  have  been  against  the  right 
claimed. 

"(7)  Or  at  all  events  it  must  appear  from  the  record  by 
clear  and  necessary  intendment  that  the  federal  question 
was  directly  involved,  so  that  the  state  court  could  not 
have  given  judgment  without  deciding  it;  that  is,  a  definite 
issue  as  to  the  decision  of  the  right  must  be  distinctly  de- 
ducible  by  the  record  before  the  state  court  can  be  held  to 
have  disposed  of  such  federal  question  by  its  decision."  20 

20  SAY  WARD  v.  DENNY,  158  TJ.  S.  180,  15  Sup.  Ct.  777,  39  L.  Ed. 
941;  Hulbert  v.  Chicago,  202  U.  S.  275,  26  Sup.  Ct.  617,  50  L.  Ed. 
1026.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  398;  Cent.  Dig.  §§  1085- 
1088. 


§  192)  REVIEW   Or   STATE   COURT   DECISIONS  539 

The  requirement  as  to  the  record  showing  is  a  little 
stronger  in  the  third  class  of  questions  than  in  the  first  two 
— due  to  the  fact  that  in  the  third  class  it  is  required  by 
the  language  of  the  statute  itself  that  the  title,  right,  privi- 
lege, or  immunity  must  be  specially  set  up  and  claimed. 
On  this  point  the  Supreme  Court  has  said: 

"To  the  argument  that  the  federal  right  was  not  special- 
ly set  up  and  claimed,  in  the  language  of  Rev.  St.  §  709 
(U.  S.  Comp.  St.  1901,  p.  575),  it  is  replied  that  this  is  not 
one  of  the  cases  in  which  it  is  necessary  to  do  so.  Under 
this  section  there  are  three  classes  of  cases  in  which  the 
final  decree  of  a  state  court  may  be  re-examined  here: 

"(1)  Where  is  drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  their  validity. 

"(2)  Where  is  drawn  in  question  the  validity  of  a  stat- 
ute of,  or  an  authority  exercised  under,  any  state,  on  the 
ground  of  their  being  repugnant  to  the  Constitution,  treat- 
ies, or  laws  of  the  United  States,  and  the  decision  is  in 
favor  of  their  validity. 

"(3)  Or  where  any  title,  right,  privilege,  or  immunity  is 
claimed  under  the  Constitution  or  any  treaty  or  statute  of, 
or  commission  held  or  authority  exercised  under,  the  Unit- 
ed States,  and  the  decision  is  against  the  title,  right,  privi- 
lege, or  immunity  specially  set  up  and  claimed  by  either 
party  under  such  Constitution,  statute,  commission,  or  au- 
thority. 

"There  is  no  doubt  that  under  the  third  class  the  federal 
right,  title,  privilege,  or  immunity  must  be,  with  possibly 
some  rare  exceptions,  specially  set  up  or  claimed,  to  give 
this  court  jurisdiction. 

"But  where  the  validity  of  a  treaty  or  statute  of  the  Unit- 
ed States  is  raised,  and  the  decision  is  against  it,  or  the 
validity  of  a  state  statute  is  drawn  in  question,  and  the  de- 
cision is  in  favor  of  its  validity,  this  court  has  repeatedly 
held  that  if  the  federal  question  appears  in  the  record,  and 


540  'APPELLATE   JURISDICTION  (Ch.  22 

was  decided,  or  such  decision  was  necessarily  involved  in 
the  case,  and  the  case  could  not  have  been  determined  with- 
out deciding  such  question,  the  fact  that  it  was  not  spe- 
cially set  up  and  claimed  is  not  conclusive  against  the  re- 
view of  such  question  here."  21 

The  question  must  be  raised  before  a  judgment  in  the 
state  court,  and  if  of  the  third  class,  must,  as  has  been  seen, 
be  specially  set  up.22  It  may  be  raised  by  a  motion  for  a 
new  trial  and  assignment  of  errors  in  the  state  court,  if 
that  is  not  too  late  under  the  state  practice,  especially  if 
the  opinion  of  the  state  court  shows  that  the  question  was 
passed  upon.23  It  cannot,  however,  be  raised  for  the  first 
time  in  the  assignment  of  errors  and  petition  for  a  writ  of 
error  in  the  United  States  Supreme  Court.24  It  cannot  be 
raised  for  the  first  time  by  a  petition  for  rehearing  in  the 
state  appellate  court  if  the  petition  is  refused,  but  if  the 
state  court  on  the  petition  for  rehearing,  considers  the 
question,  then  it  is  properly  in  the  record  for  the  purposes 
of  review  by  the  United  States  Supreme  Court.25  It  must 
appear  from  the  record,  however,  that  the  case  in  the  state 
court  turned  on  the  federal  question,  and  that  it  must  have 


21  Columbia  Water  Power  Co.  v.  Columbia  Electric  Street  R.,  Light 
&  Power  Co.,  172  U.  S.  475,  19  Sup.  Ct.  247,  43  L.  Ed.  521 ;  Harding 
v.  Illinois,  196  U.  S.  78,  25  Sup.  Ct.  176,  49  L.  Ed.  394.    See  "Courts," 
Dec.  Dig.  (Key-No.)  §  396;  Cent.  Dig.  §  1080. 

22  Yazoo  &  M.  R.  Co.  v.  Adams,  180  U.  S.  1,  21  Sup.  Ct.  240,  45 
L.  Ed.  395 ;  Turner  v.  Richardson,  180  U.  S.  87,  21  Sup.  Ct  295,  45 
L.  Ed.  438.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  396;  Cent.  Dig.  § 
1080. 

23  Rothschild  v.  Knight,  184  U.  S.  334,  22  Sup.  Ct.  391,  46  L.  Ed. 
573;  Farmers'  &  Merchants'  Ins.  Co.  v.  Dobney,  189  U.  S.  301,  23 
Sup.  Ct.  565,  47  L.  Ed.  821 ;  Chambers  v.  Baltimore  &  O.  R.  Co.,  207 
U.  S.  142,  28  Sup.  Ct.  34,  52  L.  Ed.  143.     See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  396;  Cent.  Dig.  §  1080. 

24  Appleby  v.  City  of  Buffalo,  221  U.  S.  524,  31  Sup.  Ct.  699,  55  L. 
Ed.  838.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  396;  Cent.  Dig.  §  10SO. 

25McCorquodale  v.  Texas,  211  U.  S.  432,  29  Sup.  Ct.  146,  53  L. 
Ed.  269 ;  Kentucky  Union  Co.  v.  Commonwealth  of  Kentucky,  219  U. 
S.  140,  31  Sup.  Ct.  171,  55  L.  Ed.  137.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  398;  Cent.  Dig.  §§  1085-1088. 


§  192)  REVIEW  OF  STATE   COUBT  DECISIONS  541 

been  passed  upon,  not  merely  that  it  might  have  been.28  If 
the  record  shows  that  the  federal  question  was  necessarily 
involved,  so  that  a  decision  could  not  have  been  rendered 
without  passing  upon  it,  then  it  is  sufficiently  involved  for 
the  purposes  of  a  review  by  the  United  States  Supreme 
Court,  even  though  the  opinion  of  the  state  court  does  not 
show  that  it  was  passed  upon,  or  though  the  state  court 
failed  to  make  an  express  ruling  upon  it.27 

Where  there  is  no  opinion  filed  by  the  state  court,  the 
certificate  of  the  court  that  a  federal  question  was  passed 
upon  will  be  considered  by  the  Supreme  Court  in  deciding 
whether  such  a  question  was  involved.28 

It  is  frequently  the'  case  that  the  record  in  a  state  court 
shows  not  only  federal  questions,  but  nonfederal  questions 
as  well.  If,  under  these  circumstances,  the  decision  of  the 
state  court  on  the  nonfederal  question  is  sufficient  to  dis- 
pose of  the  case  without  taking  the  federal  question  into 
consideration  at  all,  then  no  right  of  review  of  the  case 
exists  in  the  United  States  Supreme  Court,  and  it  will  dis- 
miss a  writ  of  error  taken  in  such  a  case.29  The  Supreme 
Court  in  such  a  review  has  jurisdiction,  although  it  may 

2e  Detroit  City  Ry.  Co.  v.  Guthard,  114  U.  S.  136,  5  Sup.  Ct  811, 
29  L.  Ed.  118 ;  New  York  Cent  &  H.  R.  R.  Co.  v.  New  York,  186  U. 
S.  269,  22  Sup.  Ct  916,  46  L.  Ed.  1158.  See  "Courts,"  Dec.  Dig, 
(Key-No.)  §  398;  Cent.  Dig.  §§  1085-1088. 

27  Chicago  Life  Ins.  Co.  v.  Needles,  113  U.  S.  574,  5  Sup.  Ct  681, 
28  L.  Ed.  1084;  Arrowsmith  v.  Harmoning,  118  U.  S.  194,  6  Sup.  Ct. 
1023,  30  L.  Ed.  243 ;  Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,  22  Sup.  Ct 
605,  46  L.  Ed.  847.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  398;  Cent. 
Dig.  §§  1085-1088. 

28  Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183  U.  S.  66.  22  Sup.  Ct  26,  46 
L.  Ed.  86 ;  Rector  v.  City  Deposit  Bank  Co.,  200  U.  S.  405,  26  Sup.  Ct 
289,  50  L.  Ed.  527.    But  while  such  certificate  may  aid  in  removing 
a  doubt,  it  cannot  supply  a  total  failure  of  the  record  to  show  a 
federal  question.     Louisville  &  N.  R.  Co.  v.  Smith,  204  U.   S.  551, 
27  Sup.  Ct  401,  51  L.  Ed.  612;  Seaboard  Air  Line  R.  Co.  v.  Duvall, 
225  U.  S.  477,  32  Sup.  Ct  790,  56  L.  Ed.  1171.     See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  398;  Cent.  Dig.  §§  1085-1088. 

29  EUSTIS  v.  BOLLES,  150  U.  S.  361,  14  Sup.  Ct  131,  37  L.  Ed. 
1111;   Arkansas   Southern  R.  Co.  v.  German  Nat.  Bank,  207  U.  S. 
270.  28  Sup.  Ct  78,  52  L.  Ed.  201;  Berea  College  v.  Kentucky,  211 


542  APPELLATE    JURISDICTION  (Ch.  22 

turn  out,  as  the  final  result,  that  the  federal  question 
claimed  was  not  legally  sustainable,  for  it  must  have  juris- 
diction to  consider  at  least  the  question  whether  it  is  sus- 
tainable or  not.30 

It  appears  from  the  discussion  of  the  various  classes  of 
federal  jurisdiction  heretofore  considered  that  there  are 
three  contingencies  under  which  a  federal  question  can 
come  before  the  federal  courts  for  decision,  and  slightly 
different  principles  regulate  each  one  of  these  cases.  The 
first  is  in  connection  with  the  original  jurisdiction  of  the 
federal  trial  courts,  whether  in  actions  originally  instituted 
in  them,  or  actions  taken  to  them  by  removal.  In  these 
cases  a  federal  question  may  arise  not  simply  in  connec- 
tion with  the  federal  Constitution,  as  affecting  the  validity 
of  a  state  or  federal  law,  but  also  in  connection  with  the 
construction  of  both  the  federal  Constitution,  laws,  and 
treaties.  Whenever  under  them  the  right  of  recovery 
hinges  upon  the  construction  or  application  of  the  federal 
Constitution,  laws,  or  treaties,  such  a  question  is  involved, 
and  the  original  jurisdiction  of  the  federal  court  vests,  pro- 
vided the  fact  that  such  a  question  is  involved  appears  upon 
the  plaintiff's  pleadings.  In  this  connection,  therefore,  the 
term  "federal  question"  is  used  in  its  widest  sense.31 

The  second  class  in  which  federal  questions  may  arise 
is  in  connection  with  the  right  of  appeal  from  the  federal 
courts  of  original  jurisdiction  direct  to  the  Supreme  Court. 
This  class  of  questions,  however,  is  federal  constitutional 
questions,  not  mere  questions  of  the  construction  or  appli- 
cation of  a  federal  law.  They  may  arise,  however,  not  only 
when  the  plaintiff's  pleadings  show  such  a  question  to  be 


U.  S.  45,  29  Sup.  Ct.  33,  53  L.  Ed.  81.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  391;  Cent.  Dig.  §§  1045,  1092. 

so  Chicago  Life  Ins.  Co.  v.  Needles,  113  U.  S.  574,  5  Sup.  Ct.  681, 
28  L.  Ed.  1084;  Blythe  v.  Hinckley,  180  U.  S.  333,  21  Sup.  Ct.  390, 
45  L.  Ed.  557.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  391;  Cent.  Dig.  §§ 
1045,  1092. 

si  Ante,   pp.  235,  309. 


§  192)  KEVIEW  OF  STATE  COURT  DECISIONS  643 

involved,  but  also  when  set  up  as  a  defense  in  the  case,  and 
they  may  arise  in  this  connection  whether  the  decision  is 
in  favor  of  or  against  the  constitutional  right  asserted.82 

The  last  class  is  the  one  which  has  just  been  discussed 
in  connection  with  the  right  of  review  of  state  court  deci- 
sions by  the  Supreme  Court.  In  this  class  the  question 
need  not  necessarily  arise  by  the  plaintiff's  pleadings,  but 
may  arise  in  subsequent  stages  of  the  cause.  The  court, 
however,  has  jurisdiction  in  such  case  only  where  the  de- 
cision is  against  the  constitutional  question  asserted,  and 
the  questions  involved  are  solely  federal  constitutional 
questions,  and  not  questions  of  mere  construction.  In  this 
sense,  therefore,  the  term  "federal  question"  has  its  nar- 
rowest meaning. 

"Ante,  PP.  497,  505. 


544  PROCEDURE   ON   ERROR  AND   APPEAL  (Cll.  23 

CHAPTER  XXIII 
PROCEDURE  ON  ERROR  AND  APPEAL 

193.  Review  by  the  Supreme  Court. 

194.  Same— Writ  of  Error. 

195.  Same — Appeal. 

196.  Same— Other  Methods. 

197.  Review  by  the  Circuit  Court  of  Appeals. 

198.  Trial  in  the  Appellate  Courts. 

REVIEW  BY  THE  SUPREME  COURT 

193.  Review  by  the  Supreme  Court  of  decisions  in  the 
cases  over  which  it  exercises  appellate  jurisdiction 
is  had  by  means  of  writ  of  error  or  appeal,  and  by 
certain  other  methods  provided  by  statute  in  cer- 
tain cases. 

Only  final  judgments  or  decrees  can  be  made  the  subject 
of  review  by  writ  of  error  or  appeal. 

The  appellate  courts  of  the  United  States  of  general  in- 
terest are  the  Supreme  Court  and  the  circuit  courts  of  ap- 
peals, and  the  jurisdiction  respectively  vested  in  them  has 
been  discussed  in  the  two  preceding  chapters.  It  is  now 
necessary  to  consider  the  method  of  invoking  that  jurisdic- 
tion, and  bringing  and  trying  cases  before  them. 

The  Supreme  Court 

The  courts  to  which  the  right  of  review  of  the  Supreme 
Court  extends  are,  in  the  first  place,  the  district  courts. 
The  time  of  taking  an  appeal  from  these  courts  is  prescrib- 
ed by  section  1008  of  the  Revised  Statutes.1  It  must  be 
within  two  years  after  the  entry  of  the  judgment,  decree, 
or  order  which  it  is  desired  to  review. 

iU.  S.  Comp.  St.  1901,  p.  715. 


§  193)  REVIEW   BY  SUPREME   COURT  545 

It  is  not  every  decree  or  order  which  can  be  made  the 
subject  of  review.  Were  this  not  so,  there  might  be  an 
endless  number  of  appeals  in  any  one  case;  and  hence  it 
is  a  principle,  subject  to  but  few  exceptions,  to  be  here- 
after named,  that  only  final  judgments  or  decrees  can  be 
made  the  subject  of  appellate  review.  Thus  the  case  is 
finally  ended  in  the  lower  court,  and  the  process  of  review 
brings  before  the  appellate  court,  once  and  for  all,  the  en- 
tire case.  The  question  what  constitutes  a  final  judgment 
is  a  matter  of  little  difficulty  in  a  common-law  proceeding. 
It  is  a  matter  of  great  difficulty  in  an  equity  proceeding. 
The  flexible  character  of  equity  causes  and  the  infinite  va- 
riety of  equity  decrees  render  it  difficult  to  define  exactly 
what  constitutes  a  final  decree  or  order  in  any  equity  case. 
The  general  principle  is  that  a  decree  is  final  if  it  settles 
the  principles  of  the  cause,  and  leaves  only  ministerial  acts 
by  which  its  decision  is  to  be  carried  out;  but,  although  it 
may  settle  the  main  issue  in  a  cause,  it  is  not  final  if  any- 
thing is  left  to  the  lower  court  involving  the  exercis'e  of 
judicial  power,  rather  than  ministerial.  On  this  subject 
the  Supreme  Court  has  said : 

"Probably  no  question  of  equity  practice  has  been  the 
subject  of  more  frequent  discussion  in  this  court  than  the 
finality  of  decrees.  It  has  usually  arisen  upon  appeals  tak- 
en from  the  decrees  claimed  to  be  interlocutory,  but  it  has 
occasionally  happened  that  the  power  of  a  court  to  set  aside 
such  a  decree  at  a  subsequent  term  has  been  the  subject  of 
dispute.  The  cases,  it  must  be  conceded,  are  not  altogether 
harmonious.  Upon  one  hand,  it  is  clear  that  a  decree  is 
final,  though  the  case  be  referred  to  a  master  to  execute 
the  decree  by  a  sale  of  property  or  otherwise,  as  in  the  case 
of  the  foreclosure  of  a  mortgage.  If,  however,  the  decree 
of  foreclosure  and  sale  leaves  the  amount  due  upon  the 
debt  to  be  determined,  and  the  property  to  be  sold  ascer- 
tained and  defined,  it  is  not  final.  A  like  result  follows  if 
it  merely  determines  the  validity  of  the  mortgage,  and, 
HUGHES  FED.PB.(2o  ED.)— 35 


546          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

without  ordering  sale,  directs  the  case  to  stand  continued 
for  further  decree  upon  the  coming  in  of  the  master's  re- 
port. 

"It  is  equally  well  settled  that  a  decree  in  admiralty  de- 
termining the  question  of  liability  for  a  collision  or  other 
tort,  or  in  equity  establishing  the  validity  of  a  patent,  and 
referring  the  case  to  a  master  to  compute  and  report  the 
damages,  is  interlocutory  merely. 

"It  may  be  said,  in  general,  that  if  the  court  make  a  de- 
cree fixing  the  rights  and  liabilities  of  the  parties,  and 
thereupon  refer  the  case  to  a  master  for  a  ministerial  pur- 
pose only,  and  no  further  proceedings  in  court  are  contem- 
plated, the  decree  is  final;  but  if  it  refer  the  case  to  him 
as  a  subordinate  court,  and  for  a  judicial  purpose,  as  to 
state  an  account  between  the  parties,  upon  which  a  further 
decree  is  to  be  entered,  the  decree  is  not  final.  But  even 
if  an  account  be  ordered  taken,  if  such  accounting  be  not 
asked  for  in  the  bill,  and  be  ordered  simply  in  execution 
of  the  decree,  and  such  decree  be  final  as  to  all  matters 
within  the  pleadings,  it  will  still  be  regarded  as  final."  2 

Even  if  the  appeal  from  the  district  or  circuit  court  is 
on  a  jurisdictional  question  only,  and  by  certificate,  it  can 
still  be  taken  only  after  a  final  decree  is  entered  in  the 
cause.3 

2  McGOURKEY  v.  TOLEDO  &  O.  R.  CO.,  146  TJ.  S.  536,  13  Sup. 
Ct.  170,  36  L.  Ed.  1079.  See,  also,  Keystone  Manganese  &  Iron  Co. 
v.  Martin,  132  U.  S.  91,  10  Sup.  Ct.  32,  33  L.  Ed.  275 ;  Guarantee  Co. 
of  North  America  v.  Mechanics'  Savings  Bank  &  Trust  Co.,  173  TJ.  S. 
582,  19  Sup.  Ct  551,  43  L.  Ed.  818;  Montgomery  v.  Anderson,  21 
How.  386,  16  L.  Ed.  160;  United  States  Fidelity  &  Guaranty  Co.  v. 
Bray,  225  U.  S.  205,  32  Sup.  Ct.  620,  56  L.  Ed.  1055.  See  "Appeal 
and  Error,"  Dec.  Dig.  (Key-No.)  §§  70,  71;  Cent.  Dig.  §§  886-401. 

s  Bardes  v.  First  Nat.  Bank,  175  U.  S.  526,  20  Sup.  Ct.  196,  44  L. 
Ed.  261 ;  Bowker  v.  U.  S.,  186  U.  S.  135,  22  Sup.  Ct.  802,  46  L.  Ed. 
1090.  See  "Admiralty,"  Dec.  Dig.  (Key-No.)  §  103;  "Courts,"  Dec. 
Dig.  (Key-No.)  §  382. 


§  194)  BEVIEW   BY   SUPREME   COURT  547 


SAME— WRIT  OF  ERROR 

194.  The  review  is  by  writ  of  error  in  cases  of  a  common- 
law  nature,  civil  or  criminal,  which  are  triable  by 
a  jury. 

By  this  method,  only  errors  of  law  which  have  been  em- 
bodied in  the  record  in  the  manner  usual  in  com- 
mon-law cases  can  be  reviewed. 

The  writ  of  error  is  a  writ  of  the  appellate  court  to  the 
trial  court  for  the  purpose  of  bringing  up  the  rec- 
ord for  review. 

Notice  of  appeal  or  the  issuance  of  a  writ  of  error  is  giv- 
en to  the  parties  by  citation. 

Bond  satisfactory  to  the  judge  issuing  the  writ  or  allow- 
ing the  appeal  must  be  given  as  a  condition  of  the 
appeal. 

The  seventh  amendment  of  the  Constitution  provides: 

"In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law." 

Pursuant  to  this  constitutional  provision,  section  1011 
of  the  Revised  Statutes*  provides: 

"There  shall  be  no  reversal  in  the  Supreme  Court  or  in 
a  circuit  court  upon  a  writ  of  error,  for  error  in  ruling  any 
plea  in  abatement,  other  than  a  plea  to  the  jurisdiction  of 
the  court,  or  for  any  error  in  fact." 

Under  these  provisions,  the  writ  of  error  performs  the 
office  of  bringing  up  for  review  simply  questions  of  law  in 
cases  of  common-law  nature  which  are  triable  by  a  jury. 

*  U.  S.  Comp.  St  1901,  p.  715.  This  section  applies  only  to  cases 
brought  up  from  the  inferior  federal  courts,  not  to  cases  brought  up 
from  the  state  courts.  Ruck  Stove  &  Range  Co.  v.  Vickers,  226  U. 
S.  205,  33  Sup.  Ct.  41,  57  L.  Ed. . 


548          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

The  question  what  cases  are  covered  by  this  constitutional 
amendment  has  been  discussed  at  length  in  a  recent  de- 
cision of  the  Supreme  Court.  It  says : 

"It  must  therefore  be  taken  as  established,  by  virtue  of 
the  seventh  amendment  of  the  Constitution,  that  either 
party  to  an  action  at  law  (as  distinguished  from  suits  in 
equity  or  in  admiralty)  in  a  court  of  the  United  States, 
where  the  value  in  controversy  exceeds  twenty  dollars,  has 
the  right  to  a  trial  by  jury;  that,  when  a  trial  by  jury  has 
been  had  in  an  action  at  law  in  a  court  either  of  the  Unit- 
ed States  or  of  a  state,  the  facts  there  tried  and  decided 
cannot  be  re-examined  in  any  court  of  the  United  States 
otherwise  than  accprding  to  the  rules  of  the  common  law 
of  England ;  that,  by  the  rules  of  that  law,  no  other  mode 
of  re-examination  is  allowed  than  upon  a  new  trial,  either 
granted  by  the  court  in  which  the  first  trial  was  had,  or  to 
which  the  record  was  returnable,  or  ordered  by  any  appel- 
late court  for  error  in  law ;  and  therefore  that,  unless  a 
new  trial  has  been  granted  in  one  of  these  two  ways,  facts 
once  tried  by  a  jury  cannot  be  tried  anew,  by  a  jury  or  oth- 
erwise, in  any  court  of  the  United  States.  *  *  * 

"Trial  by  jury,  in  the  primary  and  usual  sense  of  the 
term  at  the  common  law  and  in  the  American  Constitutions, 
is  not  merely  a  trial  by  a  jury  of  twelve  men  before  an  offi- 
cer vested  with  authority  to  cause  them  to  be  summoned 
and  impaneled,  to  administer  oaths  to  them  and  to  the  con- 
stable in  charge,  and  to  enter  judgment  and  issue  execution 
on  their  verdict;  but  it  is  a  trial  by  a  jury  of  twelve  men 
in  the  presence  and  under  the  superintendence  of  a  judge 
empowered  to  instruct  them  on  the  law  and  to  advise  them 
on  the  facts,  and  (except  on  acquittal  of  a  criminal  charge) 
to  set  aside  their  verdict  if,  in  his  opinion,  it  is  against  the 
law  or  the  evidence."  5 

B  CAPITAL  TRACTION  CO.  v.  HOF,  174  U.  S.  1,  13,  19  Sup.  Ct. 
580,  43  L.  Ed.  873.  See  "Jury,"  Dec.  Dig.  (Key-No.)  §  9;  Cent.  Dig. 


§  194)  REVIEW   BY  SUPREME  COURT  549 

The  questions  of  law  which  can  be  examined  on  writ  of 
error  are  simply  those  which  appear  by  the  record  in  a 
common-law  case  to  have  been  raised  and  passed  upon  by 
the  lower  court,  or  to  have  been  essential  to  its  decision. 
The  record  in  a  common-law  case  is  very  different  from 
that  in  an  equity  or  admiralty  case.  It  contains  only  the 
pleadings  and  orders  of  court,  but  not  the  evidence  or  the 
instructions,  unless  they  have  been  made  part  of  the  rec- 
ord by  a  bill  of  exceptions.  Hence  on  writ  of  error  only 
errors  of  law  can  be  considered  which  have  been  embodied 
in  the  record  in  the  manner  usual  in  common-law  cases.6 
This  same  principle  applies  to  common-law  cases  tried  and 
determined  by  the  court  after  a  jury  has  been  waived  by 
the  parties.  There,  too,  according  to  the  provisions  of  sec- 
tion 700  of  the  Revised  Statutes,7  only  those  rulings  of 
the  court  in  the  progress  of  the  cause  which  are  duly  ex- 
cepted  to  and  presented  by  a  bill  of  exceptions  can  be  re- 
viewed.8 

Form  and  Method  of  Issue  of  Writ  of  Error 

Section  1004  of  the  Revised  Statutes  9  provides  as  fol- 
lows: 

"Writs  of  error  returnable  to  the  Supreme  Court  may  be 
issued  as  well  by  the  clerks  of  the  circuit  courts  under  the 
seals  thereof,  as  by  the  clerk  of  the  Supreme  Court.  When 
so  issued  they  shall  be,  as  nearly  as  each  case  may  admit, 
agreeable  to  the  form  of  a  writ  of  error  transmitted  to  the 
clerks  of  the  several  circuit  courts  by  the  clerk  of  the  Su- 

«  St.  Glair  v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct  1002,  38  L.  Ed.  936. 
See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  859;  Cent.  Dig.  §§ 


i  U.  S.  Comp.  St.  1901,  p.  570. 

s  Norris  v.  Jackson,  9  Wall.  125,  19  L.  Ed.  608  ;  Mercantile  Mut. 
Ins.  Co.  v.  Folsorn,  18  Wall.  249,  21  L.  Ed.  827;  Town  of  Martinton 
v.  Fairbanks,  112  U.  S.  674,  5  Sup.  Ct.  321,  28  L.  Ed.  862  ;  Wilson  v. 
Merchants'  Loan  &  Trust  Co.,  183  U.  S.  121,  22  Sup.  Ct.  55,  46  L. 
Ed.  113.  See  ante,  p.  400.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  38J, 
399,  406;  "Appeal  and  Error"  Cent.  Dig.  §§  3387-5593. 

•  U.  S.  Comp.  St.  1901,  p.  713. 


550          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

preme  Court,  in  pursuance  of  section  9  of  the  act  of  May 
8,  1792,  chapter  36.  *  *  * " 

In  consequence  of  the  abolition  of  the  circuit  court  by 
the  Judicial  Code  the  amendment  of  Rev.  St.  (U.  S.)  § 
1004,  by  Act  Jan.  22,  1912,  c.  12,  37  Stat.  54,  permits  the 
clerks  of  the  district  courts  and  of  the  circuit  courts  of 
appeals  to  issue  the  writ. 

This  writ  is  the  formal  method  of  transferring  the  rec- 
ord from  the  inferior  to  the  appellate  court  for  purposes 
of  review.  Although  now  most  frequently  issued  by  the 
clerk  of  the  district  court,  it  is  the  writ  and  process  of  the 
Supreme  Court  commanding  the  lower  court  to  send  up  to 
it  for  review  the  record  made  up  as  necessary  for  that  pur- 
pose. Hence  the  original  writ  should  be  returned  to  the 
Supreme  Court,  whose  process  it  is.  On  this  subject  Mr. 
Justice  Miller  says : 

"We  are  of  opinion  that  the  original  writ  should  always 
be  returned  to  this  court  with  the  transcript  of  the  record. 
The  writ  of  error  is  the  writ  of  this  court,  and  not  of  the 
circuit  court,  whose  clerk  may  actually  issue  it.  The  early 
practice  was  that  it  could  only  issue  from  the  office  of  the 
clerk  of  the  Supreme  Court,  and  in  the  case  of  West  v. 
Barnes  [2  Dall.  401,  1  L.  Ed.  433]  at  the  August  term, 
1791,  it  was  so  decided.  This  decision  led  to  the  enactment 
of  the  ninth  section  of  the  act  of  1792,  by  which  it  was  pro- 
vided that  the  clerk  of  the  Supreme  Court,  assisted  by  any 
two  justices  of  said  court,  should  prescribe  the  form  of  a 
writ  of  error,  copies  of  which  should  be  forwarded  to  the 
clerks  of  the  circuit  courts,  and  that  such  writs  might  be 
issued  by  these  clerks,  under  the  seals  of  their  respective 
courts.  The  form  of  the  writ  provided  under  this  act  has 
been  in  use  ever  since.  It  runs  in  the  name  of  the  Presi- 
dent, and  bears  the  teste  of  the  chief  justice  of  this  court. 
It  is  in  form  and  in  fact,  the  process  of  this  court,  directed 
to  the  judges  of  the  circuit  court,  commanding  them  to 
return  with  said  writ,  into  this  court,  a  transcript  of  the 
record  of  the  case  mentioned  in  the  writ. 


§  194)  BE  VIEW  BY  SUPREME  COUBT  551 

"When  deposited  with  the  clerk  of  the  court  to  whose 
judges  it  is  directed,  it  is  served;  and  the  transcript  which 
the  clerk  sends  here  is  a  return  to  the  writ,  and  should  be 
accompanied  by  it."  10 

It  is  not  essential  that  a  writ  of  error  should  be  allowed 
by  any  judge  in  appeals  from  one  federal  court  to  another, 
for  such  appeals  are  matters  of  right.11  The  practice,  how- 
ever, has  always  been  to  have  a  writ  of  error  allowed  by  a 
judge,  and  this  practice  is  recognized  by  rule  36  ia  of  the 
Supreme  Court,  which  provides : 

"An  appeal  or  a  writ  of  error  from  a  district  court  direct 
to  this  court,  in  the  cases  provided  for  in  sections  238  and 
252  of  the  act  entitled  'An  act  to  codify,  revise,  and  amend 
the  laws  relating  to  the  judiciary/  approved  March  3,  1911, 
chapter  231,  may  be  allowed,  in  term  time  or  in  vacation 
by  any  justice  of  this  court,  or  by  any  circuit  judge  as- 
signed to  the  district  court,  or  by  any  district  judge  within 
his  district,  and  the  proper  security  be  taken  and  the  cita- 
tion signed  by  him,  and  he  may  also  grant  a  supersedeas 
and  stay  of  execution  or  of  proceedings,  pending  such  writ 
of  error  or  appeal." 

The  form  of  the  writ  of  error  in  use,  and  of  the  citation 
accompanying  the  same,  can  be  seen  in  Worcester  v.  Geor- 
gia.18 

10  MUSSINA  v.  CAVAZOS,  6  Wall.  355,  18  L.  Ed.  810.    See,  also, 
Brown  v.  McConnell,  124  U.  S.  489,  490,  491,  8  Sup.  Ct.  559,  31  L. 
Ed.  495.     See  "Appeal  and  Error,"  Dec.  Dig*  (Key-No.)  §§  399-402; 
Cent.  Dig.  §§  2103-2114. 

11  Davidson  v.  Lanier,  4  Wall.  447,  18  L.  Ed.  377;  BARTEMEYER 
v.  IOWA,  14  Wall.  26,  20  L.  Ed.  792.    There  is  one  instance  in  which 
an  appeal  from  an  inferior  federal  court  is  not  a  matter  of  right.    It 
is  in  habeas  corpus  cases,  where  the  detention  is  under  process  of  a 
state  court     In  such  case  Act  March  10,  1908,  c.  76,  35  Stat.  40 
(U.  S.  Comp.  St.  Supp.  1911,  p.  255),  requires  a  certificate  from  the 
justice  or  Judge  allowing  the  appeal  that  there  exists  probable  cause 
for  an  appeal.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  385,  405. 

12  32  Sup.  Ct.  xiii. 

i«6  Pet.  531,  532,  8  L.  Ed.  483.  See  "Appeal  and  Error,"  Dec. 
Dig.  (Key-No.)  §§  399-402;  Cent.  Dig.  §§  2103-2114;  "Courts,"  Dec. 
Dig.  (Key-No.)  §§  397,  405;  Cent.  Dig.  §  1082. 


552         PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

The  Return  of  the  Writ  of  Error  and  the  Papers  Accompany- 
ing it 

Section  997  of  the  Revised  Statutes  14  provides  as  fol- 
lows: 

"There  shall  be  annexed  to  and  returned  with  any  writ 
of  error  for  the  removal  of  a  cause,  at  the  day  and  place 
therein  mentioned,  an  authenticated  transcript  of  the  rec- 
ord, an  assignment  of  errors,  and  a  prayer  for  reversal,  with 
a  citation  to  the  adverse  party." 

The  transcript  of  the  record  is  regulated  by  Supreme 
Court  rule  8,15  which  provides : 

"The  clerk  of  the  court  to  which  any  writ  of  error  may 
be  directed  shall  make  return  of  the  same  by  transmitting 
a  true  copy  of  the  record,  and  of  the  assignment  of  errors, 
and  of  all  proceedings  in  the  case,  under  his  hand  and  the 
seal  of  the  court.  *  *  * 

"In  all  cases  brought  to  this  court  by  writ  of  error  or 
appeal,  to  review  any  judgment  or  decree,  the  clerk  of  the 
court  by  which  such  judgment  or  decree  was  rendered 
shall  annex  to  and  transmit  with  the  record  a  copy  of  the 
opinion  or  opinions  filed  in  the  case." 

This  certificate  to  the  record  is  signed  by  the  clerk,  and 
need  not  be  signed  by  the  judge.16 

The  assignment  of  errors  is  a  very  important  part  of  the 
appellate  papers.  Although  expressly  required  by  statute, 
the  failure  to  annex  an  assignment  of  errors  is  not  fatal  to 
the  jurisdiction.  The  thirty-fifth  rule  17  of  the  Supreme 
Court  provides  as  follows : 

"Where  an  appeal  or  a  writ  of  error  is  taken  from  a  dis- 
trict court  direct  to  this  court,  under  section  238  of  the  act 
entitled  'An  act  to  codify,  revise  and  amend  the  laws  re- 
lating to  the  Judiciary,'  approved  March  3,  1911,  chapter 

14  TJ.  S.  Comp.  St.  1901,  p.  712. 
IB  32  Sup.  Ct.  vi,  vil. 

is  Worcester  v.  Georgia,  6  Pet.  515,  8  L.  Ed.  483.     See  "Appeal 
and  Error,"  Dec.  Dig.  (Key-No.)  §  612;  Cent.  Dig.  §§  2697,  2699. 
17  32  Sup.  Ct.  xiii. 


§  194)  REVIEW   BY  SUPREME  COURT  553 

231,  the  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  the  court  below,  with  his  petition  for  the  writ  of 
error  and  appeal,  an  assignment  of  errors,  which  shall  set 
out  separately  and  particularly  each  error  asserted  and  in- 
tended to  be  urged.  No  writ  of  error  or  appeal  shall  be 
allowed  until  such  assignment  of  errors  shall  have  been 
filed.  When  the  error  alleged  is  to  the  admission  or  to  the 
rejection  of  evidence,  the  assignment  of  errors  shall  quote 
the  full  substance  of  the  evidence  admitted  or  rejected. 
When  the  error  alleged  is  to  the  charge  of  the  court,  the 
assignment  of  errors  shall  set  out  the  part  referred  to  toti- 
derh  verbis,  whether  it  be  in  instructions  given  or  in  in- 
structions refused.  Such  assignment  of  errors  shall  form 
part  of  the  transcript  of  the  record,  and  be  printed  with  it. 
When  this  is  not  done  counsel  will  not  be  heard,  except  at 
the  request  of  the  court ;  and  errors  not  assigned  accord- 
ing to  this  rule  will  be  disregarded,  but  the  court,  at  its 
option,  may  notice  a  plain  error  not  assigned." 

In  pursuance  of  the  same  policy,  the  twenty-first  rule  of 
the  Supreme  Court  requires  the  counsel  for  the  plaintiff  in 
error  or  appellant  to  embody  in  his  brief  a  specification  of 
the  errors  relied  on  practically  in  the  form  of  an  assign- 
ment of  errors.  Under  these  provisions,  the  failure  to  an- 
nex' the  assignment  of  errors  to  the  transcript  itself  is  not 
fatal  to  the  jurisdiction,  as  above  stated.18 

But  if  there  is  no  assignment  of  errors  in  the  record,  and 
no  proper  specification  in  the  brief,  the  appellate  court  will 
dismiss  the  case,  as  it  is  entitled  to  some  assistance  from 
counsel  in  winnowing  out  from  a  large  record  the  pivotal 
questions.18 

is  Independent  School  Dlst  of  Ackley  v.  Hall,  106  U.  S.  428,  1 
Sup.  Ct.  417,  27  L.  Ed.  237 ;  U.  S.  v.  Pena,  175  U.  S.  500,  20  Sup.  Ct. 
!»,.-,.  44  L.  Ed.  251.  See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  i 
758;  Cent.  Dig.  §  3093. 

i»  Benites  v.  Hampton,  123  U.  S.  519,  8  Sup.  Ct  254,  31  L.  Ed.  260. 
See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §§  758,  784;  Cent.  Dig. 
|§  3093,  3126. 


554          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

It  is  customary  to  file  a  short  petition  for  the  writ  of  er- 
ror with  the  assignment  of  errors,  and  to  insert  in  it  the 
prayer  for  reversal,  but  it  is  not  essential,  and  almost  any 
language  at  all  similar  would  be  construed  as  a  prayer  for 
reversal.20 

The  Citation 

It  is  obvious  from  the  above  that  the  writ  of  error  is  not 
a  process  intended  for  the  parties  to  the  cause  at  all.  It  is 
intended  for  the  lower  court,  and  is  a  method  of  directing 
that  court  to  send  up  to  the  appellate  court  the  proper  rec- 
ord. But  it  is  essential  that  the  parties  to  the  cause  should 
also  have  notice  when  it  is  intended  to  take  a  case  to*  an 
appellate  court  for  review.  This  is  accomplished  by  the  ci- 
tation, which,  as  seen  above,  must  also  be  annexed  to  the 
record,  and  service  of  it  upon  the  opposite  party  is  neces- 
sary unless  waived.  The  provision  for  the  citation  is  con- 
tained in  section  999  of  the  Revised  Statutes,21  the  conclu- 
sion of  which  is  as  follows: 

"When  the  writ  is  issued  by  the  Supreme  Court  to  a  cir- 
cuit court,  the  citation  shall  be  signed  by  a  judge  of  such 
circuit  court,  or  by  a  justice  of  the  Supreme  Court,  and 

the  adverse  party  shall  have  at  least  thirty  days'  notice. 
*     *     * » 

This  is  also  provided  by  Supreme  Court  rule  36,  already 
quoted. 

This  paper  must  be  signed  by  the  judge,  not  by  the  clerk, 
being  different  in  this  respect  from  the  writ  of  error.22  It 
may  be  served  upon  the  party  or  upon  his  attorney  of  rec- 
ord.23 A  citation,  however,  is  nothing  but  an  ordinary 
process,  giving  a  party  notice  of  a  new  court  proceeding, 

20  MUSSINA  v.  CAVAZOS,  6  Wall.  355,  18  L.  Ed.  810.  See  "Ap- 
peal and  Error,"  Dec.  Dig.  (Key-No.)  §  400;  Cent.  Dig.  §§  2107-2112. 
2iTJ.  S.  Comp.  St.  1901,  p.  712. 

22  Chaffee  v.  Hayward,  20  How.  208,  15  L.  Ed.  804.     See  "Appeal 
and  Error,"  Dec.  Dig.  (Key-No.)  §  406;  Cent.  Dig.  §§  2123-2127. 

23  Bigler  v.  Waller,  12  Wall.  142,  20  L.  Ed.  260.    See  "Appeal  and 
Error,"  Dec.  Dig.  (Key-No.)  §  407;  Cent.  Dig.  §§  2120,  2128-2132. 


§  194)  REVIEW  BY  SUPREME  COURT  655 

and  therefore  the  ordinary  rules  as  to  the  service  of  pro- 
cess apply  to  it.  A  general  appearance  of  the  party  is  a 
waiver  of  any  defects  in  form  or  service.2*  It  cannot  be 
served  by  mailing  it  in  the  post  office,  directed  to  the  op- 
posite party  or  his  attorney.28  In  a  common-law  case  taken 
up  by  writ  of  error,  the  taking  of  an  appeal  in  open  court 
is  not  a  waiver  of  the  necessity  for  a  citation.  This  is  be- 
cause a  writ  of  error  is  not  the  act  of  the  party,  but  the 
act  of  the  court,  and  differs  in  this  respect  from  an  appeal, 
in  which  case,  as  will  be  seen,  taking  and  perfecting  an 
appeal  in  open  court  obviates  the  necessity  for  a  citation.26 

The  Parties  to  a  Writ  of  Error 

The  only  parties  who  can  sue  out  a  writ  of  error  from 
an  obnoxious  judgment  are  parties  to  the  cause.27  It  is 
also  an  established  principle  that,  if  the  judgment  is  a 
joint  judgment,  all  the  parties  jointly  interested  must  unite 
in  suing  out  the  writ  of  error,  and  their  separate  names 
must  be  given.  It  cannot  be  sued  out  merely  in  a  firm 
name.28 

The  reason  why  all  the  parties  must  join  where  the  judg- 
ment is  joint  is  that  otherwise  the  court  could  not  execute 
its  decree  on  the  parties  who  refused  to  join,  and  such  par- 
ties might  in  their  turn  attempt  to  review  the  case  also. 

But  if  the  other  parties  interested  do  not  care  to  appeal, 
the  one  who  desires  to  do  so  can  accomplish  this  purpose 

24Chaffee  v.  Hayward,  20  How.  208,  15  L.  Ed.  804;  Aldrlch  v. 
JEtna  Ins.  Co.,  8  Wall  491,  19  L.  Ed.  473.  See  "Appeal  and  Error," 
Dec.  Dig.  (Key-No.)  §  409;  Cent.  Dig.  §§  2188-2190. 

26Tripp  v.  Santa  Rosa  St.  Ry.  Co.,  144  U.  S.  i26,  12  Sup.  Ct  655, 
36  L.  Ed.  371.  See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  407; 
Cent.  Dig.  §§  2120,  2128-2130. 

26  U.  S.  v.  Phillips,  121  U.  S.  254,  7  Sup.  Ct.  874,  30  L.  Ed.  914. 
See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  397;  Cent.  Dig.  §  2101. 

27  Payne  v.  Niles,  20  How.  219,  15  L.  Ed.  895.     See  "Appeal  and 
fc'rror,"  Dec.  Dig.  (Key-No.)  §  327;   Cent.  Dig.  SS  1814-1835. 

28  Feibelman  v.  Packard,  108  U.  S.  14,  1  Sup.  Ct.  138,  27  L.  Ed. 
634;  Estes  v.  Trabue,  128  U.  S.  225,  9  Sup.  Ct  58,  32  L.  Ed.  437. 
See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  327;  Cent.  Dig.  §§ 
1814-1835. 


556          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

by  a  course  equivalent  to  the  old  proceeding  known  as 
"summons  and  severance."  It  is  not  necessary  to  follow 
this  proceeding  exactly,  but  it  is  sufficient  to  give  written 
notice  to  the  other  parties  similarly  interested  to  appear, 
and  to  make  the  record  show  that  they  had  been  so  notified, 
and  had  refused  to  join.  In  this  way  only  can  all  parties 
be  bound  by  the  action  of  the  appellate  court,  and  the  de- 
cree dispose  of  the  whole  matter  in  controversy.  A  mere 
statement  in  the  petition  for  appeal  that  it  had  been  done 
is  not  sufficient  for  this  purpose.29 

Method  of  Suspending  the  Enforcement  of  the  Judgment 

Section  1000  of  the  Revised  Statutes  30  provides  as  fol- 
lows: "Every  justice  or  judge  signing  a  citation  on  any 
writ  of  error,  shall,  except  in  cases  brought  up  by  the 
United  States  or  by  direction  of  any  department  of  the 
government,  take  good  and  sufficient  security  that  the 
plaintiff  in  error  or  the  appellant  shall  prosecute  his  writ 
or  appeal  to  effect,  and  if  he  fail  to  make  his  plea  good, 
shall  answer  all  damages  and  costs,  where  the  writ  is  a 
supersedeas  and  stays  execution,  or  all  costs  only  where 
it  is  not  a  supersedeas  as  aforesaid." 

And  section  1007  of  the  Revised  Statutes  31  provides  as 
follows :  "In  any  case  where  a  writ  of  error  may  be  a  su- 
persedeas, the  defendant  may  obtain  such  supersedeas  by 
serving  the  writ  of  error,  by  lodging  a  copy  thereof  for  the 
adverse  party  in  the  clerk's  office  where  the  record  remains, 
within  sixty  days,  Sundays  exclusive,  after  the  rendering 
of  the  judgment  complained  of,  and  giving  the  security  re- 
quired by  law  on  the  issuing  of  the  citation.-  But  if  he  de- 
sires to  stay  process  on  the  judgment,  he  may,  having  serv- 
ed his  writ  of  error  as  aforesaid,  give  the  security  required 
by  law  within  sixty  days  after  the  rendition  of  such  judg- 

2»Masterson  v.  Herndon,  10  Wall.  416,  19  L.  Ed.  953;  Inglehart 
v.  Stansbury,  151  TJ.  S.  68,  14  Sup.  Ct.  237,  38  L.  Ed.  76.  See  "Ap- 
peal and  Error,"  Dec.  Dig.  (Key-No.)  §  823;  Cent.  Dig.  §§  1196-1805. 

30  U.  S.  Comp.  St.  1901,  p.  712. 

«i  U.  S.  Comp.  St.  1901,  p.  714. 


§  194)  EEVIEW  BY  SUPREME  COURT  657 

ment,  or  afterward  with  the  permission  of  a  justice  or  judge 
of  the  appellate  court.  And  in  such  cases,  where  a  writ  of 
error  may  be  a  supersedeas,  execution  shall  not  issue  until 
the  expiration  of  ten  days." 

The  bond  required  by  these  statutes  must  be  taken  by 
the  judge,  and  he  cannot  delegate  it  to  the  clerk.  The  stat- 
ute implies  that  the  bond  must  be  approved  by  him,  but 
this  approval  may  be  inferred — as,  for  instance,  where  it 
appeared  on  the  face  of  tne  bond  that  the  sureties  had  jus- 
tified before  the  judge.32  This  provision  as  to  the  bond  is 
directory  only,  not  jurisdictional,  and  the  Supreme  Court 
itself  may  give  an  opportunity  to  execute  and  file  a  proper 
bond  after  the  case  has  been  taken  there.33 

The  character  of  bonds  to  be  given  is  regulated  by  Su- 
preme Court  rule  29,34  which  reads  as  follows:  "Superse- 
deas bonds  in  the  district  courts  and  circuit  courts  of  ap- 
peals must  be  taken,  with  good  and  sufficient  security,  that 
the  plaintiff  in  error  or  appellant  shall  prosecute  his  writ 
or  appeal  to  effect,  and  answer  all  damages  and  costs  if 
he  fail  to  make  his  plea  good.  Such  indemnity,  where  the 
judgment  or  decree  is  for  the  recovery  of  money  not  other- 
wise secured,  must  be  for  the  whole  amount  of  the  judg- 
ment or  decree,  including  just  damages  for  delay,  and  costs 
and  interest  on  the  appeal ;  but  in  all  suits  where  the  prop- 
erty in  controversy  necessarily  follows  the  event  of  the 
suit,  as  in  real  actions,  replevin,  and  in  suits  on  mortgages, 
or  where  the  property  is  in  the  custody  of  the  marshal  un- 
der admiralty  process,  as  in  case  of  capture  or  seizure, 
or  where  the  proceeds  thereof,  or  a  bond  for  the  value 

«2  Silver  v.  Ladd,  6  Wall.  440,  18  L.  Ed.  828;  O'Reilly  v.  Edrlng- 
ton,  96  U.  S.  724,  24  L.  Ed.  659 ;  Haskins  v.  St.  Louis  &  S.  E.  R.  Co., 
109  U.  S.  107,  3  Sup.  Ct.  72,  27  L.  Ed.  873.  See  "Appeal  and  Error," 
Dec.  Dig.  (Key-Xo.)  §  386;  Cent.  Dig.  §§  2059-2063. 

33  Davidson  v.  Lanier,  4  Wall.  447,  18  L.  Ed.  377;  Brown  v.  Mc- 
Connell,  124  U.  S.  489,  8  Sup.  Ct.  559,  31  L.  Ed.  495;  Stewart  v. 
Masterson,  124  U.  S.  493,  8  Sup.  Ct  561,  31  L.  Ed.  507.  See  "Appeal 
and  Error,"  Dec.  Dig.  (Kcy-lfo.)  S  S86;  Cent.  Dig.  §§  2059-2063. 

3*32  Sup.  Ct.  xii. 


558          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

thereof,  is  in  the  custody  or  control  of  the  court,  indemnity 
in  all  such  cases  is  only  required  in  an  amount  sufficient  to 
secure  the  sum  recovered  for  the  use  and  detention  of  the 
property,  and  the  costs  of  the  suit,  and  just  damages  for  de- 
lay, and  costs  and  interest  on  the  appeal." 

Any  wording,  however,  which  is  practically  the  equiva- 
lent of  this,  makes  the  bond  good.35 

The  bond  should  be  payable  to  the  defendants  in  error  of 
record.36 

A  supersedeas  under  these  provisions  in  a  common-law 
case  is  only  allowed  as  incident  to  a  writ  of  error,  and  can- 
not be  allowed  until  the  writ  of  error  is  issued.37 

The  supersedeas  is,  in  its  origin  and  nature,  simply  in- 
tended to  stop  execution  on  the  judgment  rendered  in  the 
case  appealed  from.  It  cannot  prevent  the  bringing  of  sim- 
ilar suits  or  any  other  action.38 


SAME— APPEAL 

195.  An  appeal  is  a  process  borrowed  from  the  civil  law,, 
and  differs  from  the  writ  of  error,  in  that  it  brings 
up  all  questions  both  of  law  and  fact.  It  is  the 
regular  process  in  all  cases  not  falling  under  the 
classification  of  common-law  cases,  the  most  im- 
portant branches  being  equity  and  admiralty  cas- 


35  Gay  v.  Parpart,  101  TJ.  S.  391,  25  L.  Ed.  841.  See  "Appeal  and 
Error,"  Dec.  Dig.  (Key-No.)  §  384;  Cent.  Dig.  §§  2049-2056* 

se  Davenport  v.  Fletcher,  16  How.  142,  14  L.  Ed.  879.  See  "Appeal 
and  Error,"  Dec.  Dig.  (Key-No.)  §  376;  Cent.  Dig.  §§  2011-2016. 

37  in  re  Ralston,  119  U.  S.  613,  7  Sup.  Ct.  317,  30  L.  Ed.  506.    See 
"Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  459;  Cent.  Dig.  §§  2218- 
2221. 

38  Hovey  v.  McDonald,  109  U.  S.  150,  3  Sup.  Ct.  136,  27  L.  Ed.  888; 
Natal  v.  Louisiana,  123  U.  S.  516,  8  Sup.  Ct.  253,  31  L.  Ed.  233.    See 
"Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  490;  Cent.  Dig.  §§ 


§  195)  REVIEW  BY  SUPREME   COURT  559 

es.  A  habeas  corpus  proceeding  is  also  reviewable 
by  appeal,  though  that  is  a  common-law  writ ;  the 
statute  expressly  requiring  that  it  shall  be  review- 
able  in  this  manner.** 

The  Supreme  Court  has  described  as  follows  the  differ- 
ence between  an  appeal  and  a  writ  of  error :  "An  appeal  to 
this  court  in  a  proper  case  is  matter  of  right,  and  its  al- 
lowance is  in  reality  nothing  more  than  the  doing  of  those 
things  which  are  necessary  to  give  the  appellant  the  means 
of  invoking  our  jurisdiction.  A  writ  of  error  is  a  process 
of  this  court,  and  it  is  issued,  therefore,  only  upon  our  au- 
thority ;  but  an  appeal  can  be  taken  without  any  action  by 
this  court.  All  that  need  be  done  to  get  an  appeal  is  for 
the  appellant  to  cite  his  adversary  in  a  proper  way  to  ap- 
pear before  this  court,  and  for  him  to  docket  the  case  here 
at  the  proper  time.  Such  a  citation  as  is  required  may  be 
signed  by  a  judge  of  the  circuit  court  from  which  the  ap- 
peal is  taken,  or  by  a  justice  of  this  court."  40 

Section  1012  of  the  Revised  Statutes  41  provides  as  fol- 
lows: "Appeals  from  the  circuit  courts  and  district  courts 
acting  as  circuit  courts,  and  from  district  courts  in  prize 
causes,  shall  be  subject  to  the  same  rules,  regulations,  and 
restrictions  as  are  or  may  be  prescribed  in  law  in  cases  of 
writs  of  error." 

Under  this  provision  the  method  of  taking  an  appeal  is 
substantially  the  same  as  that  already  described.  There 
must  be  a  properly  authenticated  transcript  of  the  record, 
an  assignment  of  error,  and  a  prayer  for  reversal.  The 
allowance  of  an  appeal,  however,  is  not  of  itself  a  writ,  like 
the  issuing  of  a  writ  of  error  by  the  clerk.  It  is  usually  al- 

39  Rev.  St.  §§  7G3,  765  (U.  S.  Comp.  St.  1901,  pp.  594,  596). 

40  Brown  v.  McConnell,  124  U.  S.  489,  490,  491,  8  Sup.  Ct  559,  31 
L.  Ed.  495.     See  "Appeal  and  Error,"  Dec.  Dig.   (Key-Xo.)  $  405; 
Cent.  Dig.  §§  2120-2122. 

<i  U.  S.  Comp.  St.  1901,  p.  716. 


560          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

lowed  somewhat  in  the  following  language,  indorsed  at  the 
end  of  the  petition  and  prayer  for  reversal: 

"Appeal  allowed  as  prayed  for,  bond  in  the  penalty  of 
$ 


" Judge." 

How  and  by  Whom  Allowed 

Appeals  to  the  Supreme  Court  from  the  district  courts 
are  allowed  by  the  same  judges  who  would  allow  writs 
of  error  under  similar  circumstances,  and  bonds  and  other 
steps  necessary  in  perfecting  the  appeal  are  taken  and  giv- 
en in  the  same  way.  There  is,  however,  one  important  dif- 
ference between  perfecting  cases  by  appeal,  and  perfecting 
them  by  writ  of  error.  As  has  been  already  seen,  a  citation 
is  necessary  on  a  writ  of  error,  though  asked  in  open  court 
during  the  term  at  which  the  judgment  complained  of  was 
rendered.  But  when  an  appeal  is  taken  and  perfected  in 
open  court,  a  citation  is  not  necessary,  for  the  appeal  dif- 
fers from  the  writ  of  error  in  being  the  act  of  the  parties 
instead  of  the  court;  and,  when  taken  in  open  court,  all 
parties  are  constructively  present,  and  have  notice.42  A 
citation  is  necessary,  however,  though  the  appeal  is  taken 
in  open  court,  if  it  is  not  perfected  there  by  giving  the  nec- 
essary bond,  for  the  opposite  party  is  not  required  to  pre- 
sume that  an  appeal  will  be  prosecuted,  merely  from  the 
fact  that  it  is  taken.43  No  exact  language  is  necessary  in 
allowing  an  appeal.  In  fact,  taking  security  and  signing 
the  citation  is  itself  the  equivalent  of  such  allowance.44 

42  Sage  v.  Central  R.  Co.,  96  U.  S.  712,  24  L.  Ed.  641 ;  Dodge  v. 
Knowles,  114  U.  S.  430,  5  Sup.  Ct.  1197,  29  L.  Ed.  144.     See  "Appeal 
and  Error,"  Dec.  Dig.  (Key-No.)  §  397;  Cent.  Dig.  §  2101. 

43  Hewitt  v.  Filbert,  116  U.  S.  142,  6  Sup.  Ct  319,  29  L.  Ed.  581; 
Jacobs  v.  George,  150  U.   S.  415,  14  Sup.  Ct.  159,  37  L.  Ed.  1127. 
See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  397;  Cent.  Dig.  §  2101. 

44  Brandies  v.  Cochrane,  105  U.  S.  262,  26  L.  Ed.  989.     See  "Ap- 
peal and  Error,"  Dec.  Dig.  (Key-No.)  §  365;  Cent.  Dig.  §§  1784,  1977- 
1988. 


§  195)  REVIEW   BY  SUPREME   COURT  561 

The  obtaining  of  a  supersedeas  does  not  suspend  all  de- 
crees. There  are  some  which,  from  their  intrinsic  nature, 
are  not  suspended  by  a  supersedeas,  which  is  really  a  com- 
mon-law writ  intended  to  stay  execution  on  a  judgment. 
Under  these  circumstances,  the  lower  court,  when  an  ap- 
peal is  asked,  should  be  requested  to  enter  some  order  it- 
self operating  as  a  stay  of  all  proceedings — a  request  which 
any  court  will  grant  if  occasion  requires.  Its  action,  how- 
ever, in  granting  or  refusing  such  a  request  is  largely  dis- 
cretionary; and  the  appellate  court  will  not  interfere  un- 
less in  a  very  plain  case,  where  it  is  patent  that  a  failure  to 
do  so  would  prevent  the  appellant  from  reaping  the  fruits 
of  his  victory,  and  prevent  the  appellate  court  from  being 
able  to  carry  out  its  decisions.45  In  fact,  the  Supreme 
Court  and  the  circuit  courts  of  appeals  under  the  powers 
given  by  section  262  of  the  Judicial  Code,  which  authorizes 
them  to  issue  any  writs  necessary  for  the  protection  of 
their  jurisdiction,  could  issue  a  writ  of  supersedeas  direct 
for  the  purpose  of  protecting  a  litigant,  though  the  exer- 
cise of  this  power  is  rare.46 

Appeals  from  the  Circuit  Court  of  Appeals 

The  time  of  review  by  the  Supreme  Court  of  decisions  of 
the  circuit  court  of  appeals  is  limited  by  the  concluding 
paragraph  of  the  sixth  section  of  the  act  of  March  3,  1891, 4T 
to  one  year  after  the  entry  of  the  order  sought  to  be  re- 
viewed. Here,  too,  only  final  decisions  of  the  circuit  court 
of  appeals  are  reviewable  by  the  Supreme  Court.  A  deci- 
sion of  a  circuit  court  of  appeals  merely  affirming1  an  or- 


«5  Goddard  v.  Ordway,  94  U.  S.  672,  24  L.  Ed.  237;  Hovey  v.  Mc- 
Donald, 109  U.  S.  159,  3  Sup.  Ct  136,  27  L.  Ed.  888.  Bee  "Appeal 
and  Error,"  Dec.  Dig.  (Key-No.)  §  458;  Cent.  Dig.  §§  2223,  2224. 

«« In  re  McKenzie,  180  U.  S.  536,  21  Sup.  Ct  468,  45  L.  Ed.  657. 
(See  "Appeal  and  Error,"  Dec.  Dig.  (Key-No.)  §  458;  Cent.  Dig.  §§ 
2223,  2^2-'i. 

n  26  Stat.  828,  c.  517  (U.  S.  Comp.  St  1901,  p.  550).  In  view  of 
the  concluding  paragraph  of  section  297  of  the  Judicial  Code  this 
must  be  deemed  still  in  force. 

HUGHES  FED.PR.(2o  ED.) — 36 


562          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

der  which  awarded  a  temporary  injunction  is  not  such  a 
final  order.48  A  decision  of  such  court  directing  a  circuit 
court  to  remand  a  case  to  the  state  court  which  had  been 
improperly  removed  is  not  final.49  A  decision  reversing  a 
case  and  remanding  it  for  a  new  trial  is  not  a  final  order.50 
The  principle  controlling  the  question  whether  the  deci- 
sions of  an  appellate  court  are  final  decisions  or  not  is  ex- 
pressed by  the  Supreme  Court  thus :  "A  decree,  to  be  final 
for  the  purposes  of  appeal,  must  leave  the  case  in  such  a 
condition  that,  if  there  be  an  affirmance  in  this  court,  the 
court  below  will  have  nothing  to  do  but  execute  the  de- 
cree it  has  already  entered."  B1 

Hence  a  decree  dismissing  a  bill  in  equity  as  to  one  de- 
fendant who  had  demurred,  but  leaving  the  case  undisposed 
of  as  to  other  defendants  who  had  answered,  though  final 
as  to  the  parties  dismissed,  is  not  a  final  decree  in  the  sense 
in  which  it  is  used  in  connection  with  appeals,  and  an  ap- 
peal cannot  be  taken  from  it  until  the  final  disposition  of 
the  entire  case.52 

«  KIRWAN  v.  MURPHY,  170  U.  S.  205,  18  Sup.  Ct.  592,  42  L.  Ed. 
1009.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382;  Cent.  Dig.  §  1020. 

49  German  Nat.  Bank  v.  Speckert,  181  U.  S.  405,  21  Sup.  Ct.  688, 
45  L.  Ed.  926.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  382;  Cent.  Dig. 
§  1020. 

50  Montana  Min.  Co.  v.  St.  Louis  Min.  &  Mill.  Co.,  186  U.  S.  24, 
22  Sup.  Ct  744,  46  L.  Ed.  1039.     See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  382;  Cent.  Dig.  §  1020. 

si  National  Bank  of  Rondout  v.  Smith,  156  U.  S.  330,  15  Sup.  Ct. 
358,  39  L.  Ed.  441.  This  was  an  appeal  from  a  decree  of  a  circuit 
court,  but  the  principle  is  the  same.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  382;  Cent.  Dig.  §  1020. 

52  id. 


196)  BEVIEW   BY   SUPBEME   COUBT  563 


SAME— OTHER   METHODS 

196.  In  addition  to  writ  of  error  and  appeal,  the  law  allows 
reviews  of  the  decisions  of  the  circuit  court  of  ap- 
peals in  certain  cases  by  means  of  certificate  from 
that  court  to  the  Supreme  Court,  and  by  certiorari 
from  the  Supreme  Court  to  the  circuit  court  of 
appeals. 

Reviews  of  the  decisions  of  the  territorial  and  other  mis- 
cellaneous courts  are  generally  by  appeal  or  writ 
of  error,  in  accordance  with  regulations  prescribed 
by  law  for  those  cases. 

The  Different  Kinds  of  Process  Used  in  Taking  Cases  front 
Circuit  Courts  of  Appeals  to  the  Supreme  Court — Cer- 
tificate 

The  first  method  used  is  by  certificate.  It  has  been 
seen  53  that  the  circuit  court  of  appeals  may  certify  to  the 
Supreme  Court  any  questions  or  propositions  of  law  con- 
cerning which  it  desires  the  instruction  of  that  court  for 
its  proper  decision.  This  is  the  act  of  the  court  itself,  with- 
out any  motion  for  such  certificate  on  the  part  of  the  par- 
ties; and  hence  no  process  or  allowance  of  appeals,  or  any- 
thing of  that  sort,  need  be  resorted  to.  The  same  section 
goes  on  to  provide  that  on  such  certificate  the  Supreme 
Court  may  either  give  its  instruction  on  the  questions  and 
propositions  certified,  which  shall  be  binding  on  the  circuit 
court  of  appeals,  or  it  may  require  that  the  whole  record 
in  the  cause  may  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in 
the  same  manner  as  if  it  had  been  brought  there  lor  review 
by  writ  of  error  or  appeal. 

The  language  of  this  section  implies  that  this  action  on 
the  part  of  the  Supreme  Court  is  also  the  act  of  the  court, 

OB  Ante,  p.  514;  Judicial  Code,  §  239. 


564          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

and  not  of  the  parties,  and  requires  nothing  more  than  an 
order  of  some  sort  from  the  Supreme  Court  to  the  circuit 
court  of  appeals.  But  the  second  paragraph  of  Supreme 
Court  rule  37  provides:  54 

"If  application  is  thereupon  made  to  this  court  that  the 
whole  record  and  cause  may  be  sent  up  to  it  for  its  con- 
sideration, the  party  making  such  application  shall,  as  a 
part  thereof,  furnish  this  court  with  a  certified  copy  of  the 
whole  of  said  record." 

This  implies  that  the  Supreme  Court  will  listen  to  appli- 
cations by  the  parties  to  have  the  whole  record  sent  up,  and 
it  is  presumed  that  in  such  case  they  would  proceed  as  if 
on  motion,  making  the  application  in  the  form  of  a  printed 
motion  accompanied  by  reasons  therefor,  and  furnishing 
the  record  as  above  required,  and  preferably  giving  the  op- 
posite party  notice.  There  can  be  no  doubt,  however,  un- 
der the  language  of  the  statute  itself,  that  the  Supreme 
Court  can  require  the  whole  record  to  be  sent  up  to  it  of 
its  own  motion,  and  without  any  act  of  the  parties. 

Same — Certiorari 

The  next  process  by  which  cases  may  be  taken  from  the 
circuit  court  of  appeals  to  the  Supreme  Court  is  by  certio- 
rari.  This  is  provided  by  section  240  of  the  Judicial  Code. 
Paragraph  3  of  the  thirty-seventh  Supreme  Court  rule  pro- 
vides as  follows: 

"Where  application  is  made  to  this  court  to  require  a 
case  to  be  certified  to  it  for  its  review  and  determination,  a 
certified  copy  of  the  entire  record  of  the  case  in  the  circuit 
court  of  appeals  shall  be  furnished  to  this  court  by  the  ap- 
plicant as  part  of  the  application." 

The  method  of  making  this  application  is  the  same  as 
the  method  of  making  any  motion  in  the  Supreme  Court. 
Reasonable  notice  should  be  given  to  the  adverse  parties. 
The  motion  should  be  printed,  including  therein  the  notice 
and  proof  of  service,  and  the  record  should  be  annexed. 

54  32  Sup.  Ct.  xiv. 


§  196)  REVIEW  BY  SUPREME   COURT  565 

No  oral  argument  is  permitted,  and  therefore  the  motion 
or  petition  for  the  writ  should  contain  a  sufficient  state- 
ment of  the  case  to  show  the  Supreme  Court  that  this  ex- 
traordinary remedy  should  be  permitted,  or,  if  not  in  the 
petition,  an  independent  brief  should  be  filed,  showing  as 
briefly  as  possible  the  same  thing.  It  is  better  to  refrain 
in  the  brief  from  discussing  the  questions  at  issue  any 
more  than  is  necessary  to  make  a  prima  facie  case,  for,  if 
the  writ  is  granted,  there  will  still  be  opportunity  to  file  an 
elaborate  brief. 

In  case  the  litigant  thinks  when  he  goes  to  the  circuit 
court  of  appeals  that  his  case  may  eventually  go  by  cer- 
tiorari  to  the  Supreme  Court,  it  is  best  to  have  an  extra 
number  of  copies  of  the  record  printed,  so  as  to  use  them 
in  the  Supreme  Court.  One  would  have  to  be  certified  as 
an  original  record,  and  the  remainder  can  usually  be  util- 
ized, for  the  style,  size,  and  type  of  records  in  the  circuit 
court  of  appeals  are  about  the  same  as  those  required  by 
the  rules  of  the  Supreme  Court.55 

Same — Writ  of  Error 

The  third  method  of  taking  cases  from  the  circuit  courts 
of  appeals  to  the  Supreme  Court  is  by  writ  of  error.  This 
takes  up  the  same  character  of  cases  that  have  been  de- 
scribed in  connection  with  appeals  from  the  circuit  courts. 
The  last  part  of  section  11  of  the  act  of  March  3,  1891,50 
provides : 

"  *  *  *  All  provisions  of  law  now  in  force  regulating 
the  methods  and  system  of  review,  through  appeals  or 
writs  of  error,  shall  regulate  the  methods  and  system  of 
appeals  and  writs  of  error  provided  for  in  this  act  in  re- 

55  Act  Feb.  13,  1911,  c.  47,  36  Stat  901  (U.  S.  Comp.  St.  Supp.  1911. 
p.  275),  to  diminish  expenses  of  appellate  proceedings,  allows  this  as 
a  matter  of  right. 

SB  26  Stat.  829,  c.  517  (U.  S.  Comp.  St.  1901,  p.  552).  The  last  part 
of  this  is  carried  into  section  132  of  the  Judicial  Code;  but  in  view 
of  the  last  paragraph  of  section  297  of  that  Code,  the  entire  provi- 
sion above  quoted  must  still  be  in  force. 


566          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

spect  of  the  circuit  courts  of  appeals,  including  all  provi- 
sions for  bonds  or  other  securities  to  be  required  and  tak- 
en on  such  appeals  and  writs  of  error,  and  any  judge  of  the 
circuit  courts  of  appeals,  in  respect  of  cases  brought  or  to 
be  brought  to  that  court,  shall  have  the  same  powers  and 
duties  as  to  the  allowance  of  appeals  or  writs  of  error,  and 
the  conditions  of  such  allowance,  as  now  by  law  belong  to 
the  justices  or  judges  in  respect  of  the  existing  courts  of 
the  United  States  respectively." 

A  writ  of  error  from  the  Supreme  Court  to  the  circuit 
court  of  appeals  can  be  issued  by  the  clerk  of  the  district 
court,  the  clerk  of  the  circuit  court  of  appeals,  or  by  the 
clerk  of  the  Supreme  Court.  It  can  be  allowed  and  the 
citation  issued  by  any  judge  competent  to  sit  in  the  circuit 
court  of  appeals,  or  by  a  justice  of  the  Supreme  Court. 

The  fourth  method  of  taking  cases  from  the  circuit  court 
of  appeals  to  the  Supreme  Court  is  by  appeal.  Such  an  ap- 
peal can  be  allowed  by  any  of  the  judges  of  either  court, 
and  the  citation  signed  by  such  judges. 

Review  of  Decisions  of  Territorial  Courts,  or  Courts  of  the 

Dependencies 

In  those  cases  of  which  the  Supreme  Court  has  jurisdic- 
tion, the  review  is  by  writ  of  error  or  appeal,  according  to 
the  nature  of  the  case.57 

Review  of  Decisions  of  the  Court  of  Appeals  of  the  District  of 

Columbia 

The  method  of  review  in  this  case  also  is  by  writ  of  error 
or  appeal.58  There  have  been  some  interesting  decisions 
on  appeals  from  this  court  in  relation  to  the  character  of 
judgments  which  are  final,  and,  as  it  is  an  intermediate 

57  Idaho  &  O.  Land  Imp.  Co.  v.  Bradbury,  132  U.  S.  509,  10  Sup. 
Ct.  177,  33  L.  Ed.  433 ;  Judicial  Code,  §§  244-249.    See  "Courts,"  Dec. 
Dig.  (Key-No.)  §  387;  Cent.  Dig.  §§  1032-1037;  "Appeal  and  Error," 
Cent.  Dig.  §§  308,  3397. 

58  Judicial  Code,  §  250.    Under  section  251  questions  may  be  certi- 
fied up  or  the  Supreme  Court  may  require  the  whole  case  to  be  sent 
up  as  in  case  of  the  circuit  courts  of  appeals. 


§  196)  EEVIEW   BY  SUPREME   COUBT  667 

court  somewhat  similar  to  the  circuit  courts  of  appeals, 
they  are  in  point  in  that  connection  also.  For  instance,  a 
decision  of  this  court  reversing  the  lower  court,  and  direct- 
ing the  entry  of  a  decree  granting  an  injunction  on  final 
hearing,  has  been  held  to  be  a  final  decree,  as  it  leaves  prac- 
tically nothing  to  the  lower  court  but  the  ministerial  act 
of  enforcing  the  decree.59  On  the  other  hand,  a  decision  re- 
versing the  inferior  court  in  a  condemnation  proceeding, 
and  remanding  the  case,  with  instructions  to  proceed  as  di- 
rected by  the  act  of  Congress,  is  not  a  final  decree.80 

Review  of  Decisions  of  the  Court  of  Claims 

This  is  by  appeal  only,  under  the  provisions  of  section 
242  of  the  Judicial  Code. 

Review  of  Decisions  of  the  Commerce  Court 

This,  too,  is  by  appeal  only,81  under  section  210  of  the 
Judicial  Code. 

Review  of  Decisions  of  the  State  Courts — Time  of  Taking 

Section  1008  of  the  Revised  Statutes  62  prescribes  a  pe- 
riod of  two  years  for  writs  of  error  or  appeals  from  a  cir- 
cuit or  district  court.  Section  1003  63  provides  as  follows : 
"Writs  of  error  from  the  Supreme  Court  to  a  state  court  in 
cases  authorized  by  law,  shall  be  issued  in  the  same  man- 
ner, and  under  the  same  regulations,  and  shall  have  the 
same  effect  as  if  the  judgment  or  decree  complained  of  had 
been  rendered  or  passed  in  a  court  of  the  United  States." 

"•CHESAPEAKE  &  POTOMAC  TEL.  CO.  v.  MANNING,  186  U. 
S.  238,  22  Sup.  Ct.  881,  46  L.  Ed.  1144.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  588;  Cent.  Dig.  §§  1038-1040;  "Appeal  and  Error,"  Cent. 
Dig.  §§  309,  334- 

«o  Macfarland  v.  Brown,  187  U.  S.  239,  23  Sup.  Ct  105,  47  L.  Ed. 
159.  See,  also,  Macfarland  v.  Byrnes,  187  U.  S.  246,  23  Sup.  Ct  107, 
47  L.  Ed.  162.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  588;  Cent.  Dig. 
§§  1038-1040;  "Appeal  and  Error,"  Cent.  Dig.  §§  509,  334. 

«i  Act  March  3,  1911,  c.  231,  36  Stat  1150  (U.  S.  Comp.  St  Supp. 
1911,  p.  218),  repealed  October  22,  1913 ;  post,  p.  701. 

«a  U.  S.  Comp.  St  1901,  p.  715. 

«s  U.  S.  Comp.  St  1901,  p.  713, 


568          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

Under  these  two  provisions,  taken  together,  the  limita- 
tion on  writs  of  error  to  the  state  courts  is  two  years. 

Same — Character  of  Decisions  Reviewable 

Here,  too,  only  final  decisions  of  the  state  courts  are  re- 
viewable.  A  great  many  decisions  have  been  rendered  on 
tne  question  what  constitutes  a  final  decision  under  such 
circumstances.  The  test  applied  by  the  Supreme  Court  is 
as  follows :  "The  rule  is  well  settled  and  of  long  standing 
that  the  judgment  or  decree,  to  be  final,  within  the  mean- 
ing of  that  term  in  the  acts  of  Congress  giving  this  court 
jurisdiction  on  appeals  and  writs  of  error,  must  terminate 
the  litigation  between  the  parties  on  the  merits  of  the  case, 
so  that,  if  there  should  be  an  affirmance  here,  the  court  be- 
low would  have  nothing  to  do  but  to  execute  the  judgment 
or  decree  it  had  already  rendered."  6* 

But  a  decision  of  a  state  appellate  court  reversing  a  deci- 
sion of  the  inferior  court  which  had  sustained  a  demurrer 
and  remanding  the  case,  with  instructions  to  overrule  the 
demurrer  and  permit  the  case  to  proceed,  is  not  a  final 
judgment,  although  it  may  adjudicate  the  principles  of  the 
case.  In  such  case  it  is  necessary  to  let  the  case  proceed  in 
the  lower  court  to  final  judgment,  and  then  take  a  new 
appeal  to  the  state  appellate  court,  though  it  is  a  foregone 
conclusion  that  this  latter  court  will  not  consider  questions 
settled  by  its  first  appeal.  On  its  affirmance  of  the  judg- 
ment in  the  second  appeal,  a  writ  of  error  can  then  be  tak- 
en to  it  from  the  Supreme  Court,  which  will  bring  up  the 
whole  case  from  its  inception.65  So  a  decision  of  a  state 
appellate  court  reversing  a  case,  and  remanding  it  for  a 

64  Bostwick  v.  Brinkerhoff,  106  U.  S.  3,  1  Sup.  Ct.  15,  27  L.  Ed.  73. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  389;  Cent.  Dig.  §§  1041-1044. 

6B  GREAT  WESTERN  TELEGRAPH  CO.  v.  BURXHAM,  162  U. 
S.  339,  16  Sup.  Ct.  850,  40  L.  Ed.  991;  Chesapeake  &  O.  R.  Co.  v. 
McCabe,  213  U.  S.  207,  29  Sup.  Ct.  430,  53  L.  Ed.  765;  Louisiana 
Nav.  Co.  v.  Oyster  Commission  of  Louisiana,  226  U.  S.  99.  33  Sup. 

Ct.  78,  57  L.  Ed. .  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  353;  Cent. 

Dig.  §  1048. 


§  196)  REVIEW  BY  SUPREME  COURT  569 

new  trial  or  for  further  proceedings,  is  not  a  final  judg- 
ment; and  the  character  of  the  judgment  must  be  deter- 
mined from  the  language  of  the  judgment  itself."  So  a 
decision  of  a  state  appellate  court  reversing  the  decision  of 
the  lower  court  for  denying  a  change  of  venue,  and  re- 
manding the  case  for  further  proceedings,  is  not  final.*7 
But  an  order  of  a  state  appellate  court  reversing  the  lower 
court  and  remanding  the  case,  with  instructions  to  enter  a 
certain  judgment  in  itself  a  final  judgment,  is  final.68  And 
where  a  state  appellate  court  is  vested  by  the  law  of  its 
state  with  a  discretion  whether  to  allow  a  writ  of  error  or 
not,  and  on  application  it  refuses  a  writ  of  error  on  the 
ground  that  the  judgment  below  is  plainly  right,  this  is 
itself  such  a  final  order  of  the  appellate  court  as  authorizes 
a  writ  of  error  to  it  from  the  Supreme  Court." 

e«  HASELTINE  v.  CENTRAL  NAT.  BANK,  183  U.  S.  130,  22  Sup. 
Ct.  49,  46  L.  Ed.  117;  Missouri  &  K.  I.  R.  Co.  v.  Olathe,  222  U.  8. 
185,  32  Sup.  Ct.  46,  56  L.  Ed.  155.  See  "Courts,"  Dec.  Dig.  (Key-No.) 
§  393;  Cent.  Dig.  §§  1046-1048. 

67  Cincinnati  St.  Ry.  Co.  v.  Snell,  179  U.  S.  395,  21  Sup.  Ct.  205, 
45  L.  Ed.  248.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  393;  Cent.  Dig.  § 
1048. 

e  s  Mower  v.  Fletcher,  114  U.  S.  127,  5  Sup.  Ct  799,  29  L.  Ed.  117. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  393;  Cent.  Dig.  §§  1047,  1048. 

6»  The  text  states  the  correct  principle  in  the  judgment  of  the 
author,  but  it  must  be  admitted  that  the  decisions  are  not  clear. 
The  question  has  arisen  on  cases  coming  from  the  Virginia  courts, 
and  the  confusion  springs  from  the  failure  to  distinguish  between 
the  act  of  the  judge  under  the  Virginia  practice  and  the  act  of  the 
court.  In  Gregory  v.  McVeigh,  23  Wall.  294,  23  L.  Ed.  156,  the  court 
decided  that  the  writ  should  run  to  the  corporation  court  of  Alex- 
andria. At  that  time  under  the  Virginia  statute,  an  application 
for  a  writ  of  error  to  the  state  court  of  appeals  could  be  made  ei- 
ther to  the  court  or  to  one  of  the  judges;  but  if  made  to  the  latter 
and  refused  by  him  as  plainly  right,  it  could  not  then  be  made  to 
the  court.  The  defeated  party  had  made  application  to  the  Judge, 
not  to  the  court,  and  had  been  refused  on  the  ground  that  the  deci- 
sion was  plainly  right  This,  being  the  act  of  a  Judge,  did  not  go 
on  the  records  of  the  state  appellate  court,  and  hence  the  only  Judg- 
ment to  appeal  from  was  that  of  the  lower  court;  so  that  this  case 
is  perfectly  clear.  Then  came  Williams  v.  Bruffy,  96  U.  S.  176,  24 
!>.  Ed.  716;  Id.,  102  U.  S.  248,  26  L.  Ed.  135.  Here  the  party  de- 


570          PROCEDUEE  ON  ERROR  AND  APPEAL      (Ch.  23 

Process  of  Review 

These  cases  can  be  taken  to  the  Supreme  Court  by  writ 
of  error  only,  as  only  questions  of  law  are  reviewable.70 
The  writ  of  error  can  be  issued  by  the  clerk  of  the  district 
court  or  of  the  circuit  court  of  appeals,  which  includes  the 

feated  in  the  lower  court  applied  to  the  state  court  of  appeals  and 
not  to  a  judge,  and  fne  court  refused  the  writ  on  the  ground  that 
the  decision  was  plainly  right,  and  this  order  was  entered  on  its 
records.  The  Supreme  Court  held  that  this  was  the  equivalent  of 
an  order  of  affirmance,  for  the  reason  that  the  record  disclosed  no 
error,  and  that  therefore  its  writ  should  go  to  the  state  court  of  ap- 
peals and  not  to  the  lower  court,  and  that  such  order  of  the  state 
appellate  court  was  a  final  decree.  As  the  record  remained  in  the 
state  appellate  court  and  the  order  went  upon  its  minute  book,  the 
reasoning  in  this  case  seems  to  the  author  conclusive. 

Since  these  two  decisions  the  Virginia  statute  has  been  changed, 
so  that  now  under  sections  3465-3467,  Code  1904,  a  litigant  defeated 
in  the  lower  court  can  not  only  apply  to  the  individual  judges  of  the 
state  appellate  court,  but  if  they  refuse  he  can  apply  to  the  court 
at  its  next  term ;  and  until  he  does  this  he  has  not  exhausted  his 
chances  of  review.  The  action  of  the  court  in  refusing  his  applica- 
tion on  the  ground  that  the  decision  of  the  lower  court  was  plainly 
right  is  taken  on  a  transcript  of  the  record  filed  with  it,  and  its 
order  refusing  the  writ  goes  on  its  records.  It  must  imply  an  ex- 
amination and  approval  of  the  decision.  It  is  not  the  language  of  a 
refusal  to  take  jurisdiction ;  for  a  court  that  has  no  jurisdiction  has 
no  call  to  express  an  opinion  on  the  merits. 

Recently,  however,  in  Western  Union  Tel.  Co.  v.  Crovo,  220  U.  S. 
364,  31  Sup.  Ct.  399,  55  L.  Ed.  498,  where  the  order  of  the  state 
appellate  court  was  exactly  the  same  as  in  the  Williams  v.  Bruffy 
Case,  the  Supreme  Court  in  a  sentence,  without  referring  to  it  or 
any  other  authority,  said  that,  as  the  state  appellate  court  had  de- 
nied the  writ  of  error,  the  writ  of  the  Supreme  Court  should  go  to 
the  inferior  state  court.  And  later,  in  Norfolk  &  S.  Turnpike  Co.  v. 
Virginia,  225  U.  S.  264,  32  Sup.  Ct  828,  56  L.  Ed.  1082,  the  Supreme 
Court  served  notice  on  the  bar  that  after  that  term  it  would  follow 
the  rule  laid  down  in  the  Crovo  Case.  This  opinion  also  ignores  the 
Williams  v.  Bruffy  Case. 

The  question  is  not  one  of  judicial  discretion,  but  of  statutory 
construction.  Notwithstanding  the  warning,  the  author  believes  that 
when  the  Supreme  Court  comes  to  consider  thoroughly  the  present 
Virginia  statutes,  and  the  fact  that  the  action  of  the  state  appellate 
court  is  a  matter  of  record,  it  will  be  compelled  to  return  to  the 
principle  of  the  Williams  v.  Bruffy  Case.  See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  893;  Cent.  Dig.  §§  1047,  1048. 

TO  Judicial  Code,  §  237. 


§  106)  BE  VIEW   BY  SUPBEME   COUBT  671 

territory  where  the  Supreme  Court  of  the  state  sits,  or  by 
the  clerk  of  the  Supreme  Court.71  Writs  of  error  in  this 
case  may  be  allowed  by  the  chief  justice  or  presiding  judge 
of  the  state  court,  if  it  is  a  court  of  more  than  one  judge, 
or  by  any  justice  of  the  United  States  Supreme  Court.  On 
this  point  the  Supreme  Court  has  spoken  as  follows: 

"Writs  of  error  to  the  circuit  court,  under  the  twenty- 
second  section  of  the  judiciary  act,  issue  as  a  matter  of 
course,  and  can  be  obtained  from  the  clerk  of  the  circuit 
court,  and,  when  filed  in  his  office  by  the  party,  are  duly 
served;  but  writs  of  error  to  the  state  courts  can  only  is- 
sue when  one  of  the  questions  mentioned  in  the  twenty- 
fifth  section  of  that  act  was  decided  by  the  court  to  which 
the  writ  is  directed ;  and,  in  order  that  there  may  be  some 
security  that  such  a  question  was  decided  in  the  case,  the 
statute  requires  that  the  citation  must  be  signed  by  the 
chief  justice  or  judge  or  chancellor  of  the  court  rendering 
or  passing  the  judgment  or  decree  complained  of,  or  by  a 
justice  of  the  Supreme  Court  of  the  United  States.  It  has 
been  the  settled  doctrine  of  this  court  that  a  writ  of  error 
to  a  state  court  must  be  allowed  by  one  of  the  judges  above 
mentioned,  or  it  will  be  dismissed  for  want  of  jurisdiction. 

*         *         *  »  72 

Accordingly,  where  the  writ  of  error  is  allowed  by  one 
of  the  associate  judges  of  the  state  court,  it  is  of  no  effect.78 
These  writs  of  error  differ  from  those  of  the  circuit  court 
in  the  important  particular  that  they  are  not  a  strict  matter 
of  right.  Not  only  in  the  above  quotation,  but  in  other 
cases,  the  Supreme  Court  has  said  that  they  must  be  al- 


TI  Sections  1003,  1004,  Rev.  St  (U.  S.  Comp.  St.  1901,  p.  713). 

72  BARTEMEYER  v.  IOWA,  14  Wall.  26,  20  L.  Ed.  792.  See,  also, 
Missouri  Valley  Land  Co.  v.  Weise,  208  U.  S.  234,  28  Sup.  Ct  294, 
52  L.  Ed.  466.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  397;  Cent.  Dig. 
§§  1081-1084- 

T  s  Butler  v.  Gage,  138  U.  S.  52,  11  Sup.  Ct.  235,  34  L.  Ed.  869; 
Havnor  v.  New  York,  170  U.  S.  408,  18  Sup.  Ct.  631,  42  L.  Ed.  1087. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  597;  Cent.  Dig.  §§  1081-1084. 


572          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

lowed  by  one  of  the  judges  above  named,  as  some  security 
that  a  federal  question  of  the  character  contemplated  is  in- 
volved in  the  case.7* 

The  return  of  these  writs  of  error  is  regulated  by  the 
eighth  rule  of  the  Supreme  Court,  under  which  the  clerk 
to  which  the  writ  of  error  is  directed  makes  return  by 
transmitting  a  true  copy  of  the  record  and  all  the  accom- 
panying papers  under  his  hand  and  the  seal  of  the  court. 
He  must  include  in  this  the  opinion  of  the  lower  court. 
Under  section  999  of  the  Revised  Statutes,75  the  citation  in 
this  case  must  be  signed  by  the  chief  justice  or  judge  or 
chancellor  of  the  state  court  rendering  the  judgment  or 
passing  the  decree  complained  of,  or  by  a  justice  of  the 
Supreme  Court  of  the  United  States,  and  the  opposite  par- 
ty must  have  at  least  thirty  days'  notice. 

Under  section  1000  of  the  Revised  Statutes,76  the  justice 
or  judge  signing  the  citation  has  power  to  take  the  proper 
bond.  In  order  for  this  bond  to  operate  as  a  supersedeas, 
the  writ  of  error  must  be  served  by  lodging  a  copy  for  the 
adverse  party  in  the  clerk's  office  where  the  record  remains 
within  sixty  days,  Sundays  exclusive,  after  the  rendering  of 
the  judgment  complained  of,  and  giving  the  security  requir- 
ed by  law  on  the  issuing  of  the  citation.  The  record  must 
show  that  this  has  been  done.77  The  steps  necessary  to 
properly  take  a  case  from  the  state  court  of  last  resort  to 
the  Supreme  Court  are  therefore  as  follows : 

1.  Prepare  the  assignment  of  errors  and  the  petition  for 
the  writ  of  error.  These  are  papers  of  the  state  court,  and 


74  Gleason  v.  Florida,  9  Wall.  779,  19  L.  Ed.  730;  Spies  v.  Illinois, 
123  U.  S.  131,  8  Sup.  Ct.  22,  31  L.  Ed.  80.     See  "Courts,"  Dec.  Dig. 
(Key-No.)  §  397;  Cent.  Dig.  §§  1081-1084. 

75  U.  S.  Comp.  St.  1901,  p.  712. 

76  U.  S.  Comp.  St.  1901,  p.  712. 

7  7  Rev.  St.  §  1007  (U.  S.  Comp.  St.  1901,  p.  714);  O'Dowd  v.  Rus- 
sell, 14  Wall.  402,  20  L.  Ed.  857 ;  Boise  County  v.  Gorman,  19  Wall. 
661,  22  L.  Ed.  226.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  898;  Cent. 
Dig.  §§  1085-1088. 


§  196)  REVIEW   BY  SUPREME  COURT  573 

should  be  entitled  in  the  state  court.    They  can  be  signed 
by  counsel. 

2.  Get  the  presiding  judge  of  the  state  court  to  allow  the 
writ  of  error.  A  Supreme  Court  justice  could  also  do  it, 
but  ordinarily  the  judge  of  the  state  court  is  more  accessi- 
ble. The  allowance  can  be  indorsed  at  the  foot  of  the  pe- 
tition for  the  writ  of  error,  somewhat  in  the  following  lan- 
guage : 

"Writ  of  error  allowed  upon  the  execution  of  a  bond  by 

in  the  sum  of  $ Said  bond,  when 

approved,  to  act  as  a  supersedeas. 

"Dated.. 


'Chief  Justice  of. 


Care  should  be  taken  to  see  that  the  signature  of  the 
judge  shows  that  he  is  the  chief  justice  or  presiding  judge. 

3.  Execute  the  bond  with  proper  acknowledgments  and 
justifications,  and  have  the  chief  justice  approve  it.  The 
usual  way  of  doing  this  is  simply  to  write  at  the  bot- 
tom of  it :  "Approved ,  Chief  Justice  of 


4.  Get  the  clerk  of  the  United  States  district  court  for 
the  district,  or  the  clerk  of  the  circuit  court  of  appeals,  to 
issue  the  writ  of  error,  and  have  the  presiding  judge  of 

the  state  court  indorse  at  the  bottom :  "Allowed , 

Chief  Justice  of " 

5.  Have  the  citation  signed  by  the  chief  justice  of  the 
state  court,  and  attested  by  the  clerk  of  that  court. 

6.  Have  the  citation  served,  or  service  acknowledged. 

7.  Take  these  various  papers,  leave  the  original  assign- 
ment of  errors,  petition  for  writ  of  error,  allowance,  and 
bond,  in  the  state  court,  have  copies  of  these  papers  made 
and  attach  them  to  the   transcript  of  the  record;  attach 
also  to  the  transcript  the  original  writ  of  error  and  the 
original  citation,  with  proof  of  service;    have  the  clerk  of 


574          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

the  state  court  certify  that  the  original  of  the  bond  was 
lodged  in  his  office,  and  that  the  original  writ  of  error  was 
lodged  there  on  a  given  date,  and  a  copy  for  each  one  of  the 
defendants  in  error  (naming  them),  and  then  have  him 
certify  all  the  papers  as  follows: 

"Return  to  Writ  of  Error. 

"In  obedience  to  the  commands  of  the  within  writ,  I 
herewith  transmit  to  the  Supreme  Court  of  the  United 
States  a  duly  certified  transcript  of  the  complete  record  and 
proceedings  in  the  within-entitled  cause,  with  all  things 
concerning  the  same. 

"Witness  my  hand  and  the  seal  of  the  Supreme  Court 
of this day  of " 

8.  Send  these  papers  to  the  clerk  of  the  Supreme  Court, 
with  an  entry  of  appearance,  and,  last  but  not  least,  a  check 
for  $25. 


REVIEW  BY  THE  CIRCUIT  COURT  OF  APPEALS 

197.  Review  by  the  circuit  court  of  appeals  of  decisions  in 
the  cases  over  which  it  exercises  appellate  juris- 
diction is  had  by  means  of  writ  of  error  or  appeal 
in  accordance  with  the  general  principles  govern- 
ing these  methods. 

Only  final  decisions  of  the  lower  courts  can  be  made  the 
subject  of  this  appellate  review,  except  that  ap- 
peals are  allowed  by  law  in  certain  interlocutory 
decrees  or  orders  granting,  continuing,  refusing  or 
dissolving  injunctions,  or  appointing  receivers, 
provided  certain  requirements  prescribed  by  the 
statute  be  followed  in  the  prosecution  of  such  re- 
views. 


§  197)  EEVIEW  BY  CIRCUIT   COURT   OF   APPEALS  675 

Method  of  Maturing  Cases  in  the  Circuit  Courts  of  Appeals — 
From  the  District  and  Circuit  Courts 

The  time  of  taking  these  appeals  is  limited  by  the  elev- 
enth section  of  the  act  of  March  3,  1891,78  to  six  months 
after  the  entry  of  the  order  complained  of,  except  where 
"a  lesser  time  is  now  by  law  limited  for  appeals  or  writs  of 
error." 

Instances  of  such  lesser  time  are  appeals  from  certain  in- 
terlocutory decrees,  which  are  limited  to  thirty  days,  and 
appeals  under  section  25  of  the  bankrupt  act,  which  are 
limited  to  ten  days. 

Character  of  Decisions  Renewable 

Here,  too,  the  general  rule  is  that  only  final  decisions  are 
reviewable,  and  the  authorities  heretofore  quoted  are  ap- 
plicable as  indicating  what  are  final  decisions;  but  there 
is  one  important  exception,  in  case  of  review  of  decisions 
of  district  and  circuit  courts  by  the  circuit  court  of  ap- 
peals. It  is  provided  by  section  129  of  the  Judicial  Code, 
which  reads  as  follows:  "Where  upon  a  hearing  in  equity 
in  a  district  court,  or  by  a  judge  thereof  in  vacation,  an 
injunction  shall  be  granted,  continued,  refused,  or  dissolv- 
ed by  an  interlocutory  order  or  decree,  or  an  application 
to  dissolve  an  injunction  shall  be  refused,  or  an  interlocuto- 
ry order  or  decree  shall  be  made  appointing  a  receiver,  an 
appeal  may  be  taken  from  such  interlocutory  order  or  de- 
cree granting,  continuing,  refusing,  dissolving,  or  refusing 
to  dissolve,  an  injunction,  or  appointing  a  receiver,  to  the 
circuit  court  of  appeals,  notwithstanding  an  appeal  in  such 
case  might,  upon  final  decree  under  the  statutes  regulating 
the  same,  be  taken  directly  to  the  Supreme  Court:  Pro- 
vided, that  the  appeal  must  be  taken  within  thirty  days 
from  the  entry  of  such  order  or  decree,  and  it  shall  take 
precedence  in  the  appellate  court;  and  the  proceedings  in 
other  respects  in  the  court  below  shall  not  be  stayed  un- 
less otherwise  ordered  by  that  court,  or  the  appellate  court, 

TS  U.  S.  Comp.  St  1901,  p.  552. 


576          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

or  a  judge  thereof,  during  the  pendency  of  such  appeal: 
Provided,  however,  that  the  court  below  may,  in  its  discre- 
tion, require  as  a  condition  of  the  appeal  an  additional 
bond." 

The  hardships  of  injunction  or  receivership  orders  con- 
stitute the  reason  for  making  an  exception  to  the  general 
rule  of  appellate  proceedings  allowing  only  final  decrees  to 
be  reviewed. 

An  order  appointing  a  receiver,  though  ex  parte,  is  ap- 
pealable, under  this  provision.79  So,  too,  an  order  confirm- 
ing the  appointment  of  a  receiver.80 

When  a  case  is  taken  to  the  circuit  court  of  appeals  un- 
der this  provision,  the  latter  court  has  the  power,  in  its 
discretion,  to  consider  the  whole  case,  and  enter  a  final  de- 
cree in  it,  if  it  thinks  the  case  one  in  which  it  should  ex- 
ercise this  power.81  In  such  appeals  it  is  discretionary 
with  the  lower  court  whether  to  suspend  the  order  of  in- 
junction or  the  appointment  of  a  receiver.  The  language 
of  the  act  speaking  of  suspending  proceedings  "in  other 
respects"  was  not  intended  to  imply  that  the  lower  court 
could  not  suspend  in  these  respects  also.82 

Process  of  Review 

This  may  be  by  writ  of  error  or  appeal,  according  to  the 
nature  of  the  case.  The  writ  of  error  under  the  provisions 
of  section  11,  already  quoted,  can  be  issued  by  the  clerk  of 
the  district  court  or  the  clerk  of  the  circuit  court  of  ap- 
peals; and  the  judge  of  either  the  higher  or  lower  court 

TO  Joseph  Dry  Goods  Co.  v.  Hecht,  120  Fed.  760,  57  C.  C.  A.  64. 
See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §§  1091-1103. 

so  Pacific  Northwest  Packing  Co.  v.  Allen,  109  Fed.  515,  48  C.  C. 
A.  521.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §§  1097- 
1103. 

si  Smith  v.  Vulcan  Iron  Works,  165  U.  S.  518,  17  Sup.  Ct.  407,  41 
L.  Ed.  810;  Metropolitan  Water  Co.  v.  Kan.  Valley  Drainage  Dist. 
of  Wyandotte  County,  223  U.  S.  519,  32  Sup.  Ct.  246,  56  L.  Ed.  533. 
See  "Courts"  Dec.  Dig.  (Key-No.)  §  405;  Cent.  Dig.  §§  1097-1103. 

82  in  re  McKenzie,  180  U.  S.  536,  550,  21  Sup.  Ct.  468,  45  L.  Ed. 
657.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §  405. 


§  198)  TKIAL   IN    APPELLATE   COURTS  577 

cari  allow  the  appeal  or  writ  of  error,  approve  the  bond, 
sign  the  citation,  and  do  all  other  acts  necessary  to  perfect 
the  appeal.83 

Revieiv  of  Decisions  of  Territorial  Courts 

The  cases  from  these  courts  which  are  reviewable  by  the 
circuit  court  of  appeals  are  taken  up  by  writ  of  error  or 
appeal,  according  to  their  nature.84 


TRIAL  IN   THE   APPELLATE   COURTS 

198.  Trials  in  the  appellate  courts  are   governed  by  rules 
prescribed  by  them  under  authority  of  law. 

The  first  step  necessary  is  docketing  the  case.  In  the 
Supreme  Court  this  is  regulated  by  rule  9,  and  it  must  be 
docketed  by  the  return  day.  Substantially  similar  rules 
prevail  in  all  the  circuit  courts  of  appeals.  The  next  step 
necessary  is  to  have  the  record  printed.  An  estimate  of  the 
cost  is  furnished  by  the  clerk,  and  the  appellant  must  de- 
posit the  necessary  funds.  In  the  Supreme  Court  he  must 
also  deposit  twenty-five  dollars  on  the  entry  of  his  ap- 
pearance, and  most,  if  not  all,  of  the  circuit  courts  of  ap- 
peals have  a  similar  rule. 

Further  Proof 

The  general  rule  as  to  appellate  proceedings  is  that  the 
case  is  heard  on  the  record  coming  from  the  lower  court, 
which  is  printed  in  advance  of  the  hearing.  There  are  a 
few  cases  in  which  further  proof  can  be  taken  in  the  appel- 
late court.  The  most  important  of  these  are  admiralty  cas- 
es. These  cases  go  to  the  circuit  courts  of  appeals  ordi- 
narily, and  in  some  of  the  circuits,  as  in  the  First  and  Sec- 
ond Circuits,  the  matter  of  further  proof  is  regulated  by 

ssTornanses  v.  Melsin*,  106  Fed.  775,  45  C.  C.  A.  615;  In  re  Mc- 
Kenzie,  180  U.  S.  536,  550,  21  Sup.  Ct.  468,  45  L.  Ed.  657.  See 
"Courts"  Dec.  Dig.  (Key-No.)  §  405. 

84  Judicial  Code,  §§  128,  131,  134,  135. 
HUGHES  FED.PB.(2o  ED.)— 37 


578          PROCEDURE  ON  ERROR  AND  APPEAL      (Ch.  23 

rule.  In  many  there  is  no  express  rule  on  the  subject,  but 
the  principle  is  about  the  same,  and  it  corresponds  with  the 
principle  which  formerly  governed  the  taking  of  proof  in 
such  cases  in  the  Supreme  Court.  That  principle  is  that  it 
was  only  allowed  where  it  was  impossible  to  have  the  proof 
in  the  lower  court — such  as  cases  of  after-discovered  evi- 
dence or  loss  of  evidence.  Unless  this  principle  were  ap- 
plied, courts  would  constantly  find  an  entire  new  case 
made  in  the  appellate  court.85  Rule  12  of  the  Supreme 
Court  and  section  698  of  the  Revised  Statutes  86  also  pro- 
vide for  taking  new  proof  in  admiralty  in  the  Supreme 
Court.  The  rule  and  the  statute  were  both  in  force  before 
trie  act  conferring  final  jurisdiction  in  admiralty  cases  on 
the  circuit  court  of  appeals;  but,  if  an  admiralty  case 
should  be  taken  to  the  Supreme  Court — as,  for  instance, 
where  it  involved  a  constitutional  and  jurisdictional  ques- 
tion— or  went  up  by  certiorari,  there  is  no  reason  why  this 
rule  and  statute  would  not  still  prevail,  and  permit  the  tak- 
ing of  new  evidence  in  the  Supreme  Court  when  the  cir- 
cumstances justified  it. 

Briefs 

The  Supreme  Court  and  circuit  court  of  appeals,  while 
permitting  oral  argument,  require  printed  arguments  or 
briefs  to  be  filed  in  advance  of  the  calling  of  the  case  on  the 
docket.  The  appellant's  brief  is  required  by  Supreme  Court 
rule  21  87  to  contain  a  specification  of  the  errors  relied  on, 
.and  various  other  information,  rendering  it  easy  for  the 
judges  to  find  out  the  issues  involved  without  the  necessity 
of  constant  reference  to  the  record.  Similar  rules  apply 
in  the  circuits.  The  preparation  of  the  brief  is  the  most  re- 
sponsible part  of  the  work  in  the  appellate  courts.  In  these 
courts  special  care  should  be  taken  to  present  the  facts,  and 


ss  The  Mabey,  10  WaU.  419,  19  L.  Ed.  963.    See  "Admiralty,"  Dec. 
Dig.  (Key -No.)  §  111;  Cent.  Dig.  §  75 4. 
se  U.  S.  Comp.  St.  1901,  p.  568. 
87  32  Sup.  Ct.  x. 


§  198)  TRIAL  IN  APPELLATE   COURTS  571) 

only  the  necessary  facts,  as  clearly  as  possible,  and  in 
the  discussion  of  questions  of  law  the  brief  should  not  be 
padded  with  a  great  mass  of  references.  One  or  two  point- 
ed cases  on  each  point  will  have  more  effect  than  a  multi- 
tude. If  the  judges  of  any  appellate  court  were  to  read 
every  single  case  referred  to  in  every  single  brief  during 
any  one  term,  there  is  hardly  a  book  in  their  library  which 
they  would  not  have  to  handle  two  or  three  times  over. 

In  case  of  defeat  in  the  appellate  court,  a  rehearing  may 
be  asked  during  the  term,  but  cannot  be  asked  after  the 
term.88  The  granting  of  a  rehearing,  however,  is  the  ex- 
ception. 

When  the  appellate  court  renders  its  decision,  it  notifies 
the  inferior  court  by  sending  down  its  mandate.  In  ap- 
peals from  the  district  court  to  the  Supreme  Court,  the  pa- 
per goes  back  to  the  court  of  first  jurisdiction;  and  in  ap- 
peals from  the  circuit  courts  of  appeals  to  the  Supreme 
Court,  also,  the  mandate  goes  direct  to  the  district  or  cir- 
cuit court,  and  not  to  the  circuit  court  of  appeals.89 

In  considering  the  various  statutes  referred  to  which 
were  passed  before  the  abolition  of  the  circuit  court  and 
still  mention  it,  the  provisions  of  section  291  of  the  Judicial 
Code  must  be  borne  in  mind.  It  provides:  "Wherever,  in 
any  law  not  embraced  within  this  act,  any  reference  is  made 
to,  or  any  power  or  duty  is  conferred  or  imposed  upon,  the 
circuit  courts,  such  reference  shall,  upon  the  taking  effect 
of  this  act,  be  deemed  and  held  to  refer  to,  and  to  confer 
such  power  and  impose  such  duty  upon,  the  district  courts." 

ssBushnell  v.  Crooke  Mining  &  Smelting  Co.,  150  U.  S.  82,  14 
Sup.  Ct.  2,  37  L.  Ed.  1007.  See  "Courts,"  Dec.  Dig.  (Kcy-lfo.)  §  405. 

s  9  Act  March  3,  1891,  c.  517,  §  10,  26  Stat  829  (U.  S.  Coiup.  St 
1901,  p.  552). 


APPENDIX 


RULES 

OF  THE 

UNITED  STATES  SUPREME  COURT 


1 
CLERK 

1.  The  clerk  of  this  court  shall  reside  and  keep  the  office  at  the 
seat  of  the  national  government,  and  he  shall  not  practice,  either 
as  attorney  or  counselor,  in  this  court,  or  in  any  other  court,  while 
he  shall  continue  to  be  clerk  of  this  court. 

2.  The  clerk  shall  not  permit  any  original  record  or  paper  to  be 
taken  from  the  court  room,  or  from  the  office,  without  an  order  from 
the  court,  except  as  provided  by  rule  10. 

2 

ATTORNEYS  AND  COUNSELORS 

1.  It  shall  be  requisite  to  the  admission  of  attorneys  or  coun- 
selors to  practice  in  this  court,  that  they  shall  have  been  such  for 
three  years  past  in  the  highest  courts  of  the  states  to  which  they 
respectively  belong,  and  that  their  private  and  professional  charac- 
ters shall  appear  to  be  fair. 

2.  They  shall  respectively  take  and  subscribe  the  following  oath 
or  affirmation,  viz.: 

I, ,  do  solemnly  swear  (or  affirm)  that  I  will  demean 

myself,  as  an  attorney  and  counselor  of  this  court,  uprightly  and 
according  to  law;  and  that  I  will  support  the  Constitution  of  the 
United  States. 

3 

PRACTICE 

This  court  considers  the  former  practice  of  the  courts  of  King's 
bench  and  of  chancery,  in  England,  as  affording  outlines  for  the 
practice  of  this  court;   and  will,  from  time  to  time,  make  such  al- 
terations therein  as  circumstances  may  render  necessary. 
HUGHES  FED.Pn.(2D  ED.)        (581) 


582  APPENDIX 

4 

BILL  OF  EXCEPTIONS 

The  judges  of  the  district  courts  in  allowing  bills  of  exception 
shall  give  effect  to  the  following  rules: 

1.  No  bill  of  exceptions  shall  be  allowed  which  shall  contain  the 
charge  of  the  court  at  large  to  the  jury  in  trials  at  common  law, 
upon  any  general  exception  to  the  whole  of  such  charge.    But  the 
party  excepting  shall  be  required  to  state  distinctly  the  several  mat- 
ters of  law  in  such  charge  to  which  he  excepts;  and  those  matters  of 
law,  and  those  only,  shall  be  inserted  in  the  bill  of  exceptions  and 
allowed  by  the  court. 

2.  Only  so  much  of  the  evidence  shall  be  embraced  in  a  bill  of 
exceptions  as  may  be  necessary  to  present  clearly  the  questions  of 
law  involved  in  the  rulings  to  which  exceptions  are  reserved,  and 
such  evidence  as  is  embraced  therein  shall  be  set  forth  in  condensed 
and  narrative  form,  save  as  a  proper  understanding  of  the  questions 
presented  may  require  that  parts  of  it  be  set  forth  otherwise. 


PROCESS 

1.  All  process  of  this  court  shall  be  in  the  name  of  the  President 
of  the  United  States,  and  shall  contain  the  Christian  names,  as  well 
as  the  surnames,  of  the  parties. 

2.  When  process  at  common  law  or  in  equity  shall  issue  against 
a  state,  the  same  shall  be  served  on  the  governor,  or  chief  executive 
magistrate,  and  attorney  general  of  such  state. 

3.  Process  of  subpoana,  issuing  out  of  this  court,  in  any  suit  in 
equity,  shall  be  served  on  the  defendant  sixty  days  before  the  return 
day  of  the  said  process;  and  if  the  defendant,  on  such  service  of  the 
subpoena,  shall  not  appear  at  the  return  day,  the  complainant  shall 
be  at  liberty  to  proceed  ex  parte. 

6 

MOTIONS 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall 
contain  a  brief  statement  of  the  facts  and  objects  of  the  motion. 

2.  Forty-five  minutes  on  each  side  shall  be  allowed  to  the  argu- 
ment of  a  motion,  and  no  more,  without  special  leave  of  the  court, 
granted  before  the  argument  begins. 

3.  No  motion  to  dismiss,   except  on  special  assignment  by  the 
court,  shall  be  heard,  unless  previous  notice  has  been  given  to  the 
adverse  party,  or  the  counsel  or  attorney  of  such  party. 

4.  All  motions  to  dismiss  writs  of  error  and  appeals,  except  mo- 
tions to  docket  and  dismiss  under  rule  9,  must  be  submitted  in  the 


EULES   OF  THE   UNITED  STATES  SUPREME  COURT        583 

first  instance  on  printed  briefs  or  arguments.  If  the  court  desires 
further  argument  on  that  subject,  it  will  be  ordered  in  connection 
with  the  hearing  on  the  merits.  The  party  moving  to  dismiss  shall 
serve  notice  of  the  motion,  with  a  copy  of  his  brief  of  argument,  on 
the  coupsel  for  plaintiff  in  error  or  appellant  of  record  in  this  court, 
at  least  three  weeks  before  the  time  fixed  for  submitting  the  motion, 
in  all  cases  except  where  the  counsel  to  be  notified  resides  west  of 
the  Rocky  Mountains,  in  which  case  the  notice  shall  be  at  least 
thirty  days.  Affidavits  of  the  deposit  in  the  mail  of  the  notice  and 
brief  to  the  proper  address  of  the  counsel  to  be  served,  duly  post- 
paid, at  such  time  as  to  reach  him  by  due  course  of  mail,  the  three 
weeks  or  thirty  days  before  the  time  fixed  by  the  notice,  will  be 
regarded  as  prima  facie  evidence  of  service  on  counsel  who  reside 
without  the  District  of  Columbia.  On  proof  of  such  service,  the 
motion  will  be  considered,  unless,  for  satisfactory  reasons,  further 
time  be  given  by  the  court  to  either  party. 

5.  The  court  in  any  pending  cause  will  receive  a  motion  to  affirm 
on  the  ground  that  it  is  manifest  that  the  writ  or  appeal  was  taken 
for  delay  only,  or  that  the  questions  on  which  the  decision  of  the 
cause  depend  are  so  frivolous  as  not  to  need  further  argument    The 
same  procedure  shall  apply  to  and  control  such  motions  as  is  pro- 
vided for  in  cases  of  motions  to  dismiss  under  paragraph  4  of  this 
rule. 

6.  Although  the  court  upon  consideration  of  a  motion  to  dismiss 
or  a  motion  to  affirm  may  refuse  to  grant  the  motion,  it  may  never- 
theless, if  the  conclusion  is  arrived  at  that  the  case  is  of  such  a 
character   as  not  to  justify  extended  argument,   order  the  cause 
transferred  for  hearing  to  a  summary  docket    The  hearing  of  the 
causes  on  such  docket  will  be  expedited,  the  court  providing  from 
time  to  time  for  such  speedy  disposition  of  the  docket  as  the  regular 
order  of  business  may  permit,  and  on  the  hearing  of  such  causes 
one-half  hour  will  be  allowed  each  side  for  oral  argument 

7.  The  court  will  not  hear  arguments  on   Saturday  (unless  for 
special  cause  it  shall  order  to  the  contrary),  but  will  devote  that 
day  to  the  other  business  of  the  court    The  motion  day  shall  be 
Monday  of  each  week;  and  motions  not  required  by  the  rules  of  the 
court  to  be  put  on  the  docket  shall  be  entitled  to  preference  im- 
mediately after  the  reading  of  opinions,  if  such  motions  shall  be 
made  before  the  court  shall  have  entered  upon  the  hearing  of  a  case 
upon  the  docket 


LAW  LIBRARY 

1.  During  the  session  of  the  court,  any  gentleman  of  the  bar  hav- 
ing a  case  on  the  docket,  and  wishing  to  use  any  book  or  books  in 
the  law  library,  shall  be  at  liberty,  upon  application  to  the  clerk  of 
the  court,  to  receive  an  order  to  take  the  same  (not  exceeding  at  any 


584  APPENDIX 

one  time  three)  from  the  library,  he  being  thereby  responsible  for 
the  due  return  of  the  same  within  a  reasonable  time,  or  when  re- 
quired by  the  clerk.  And  in  case  the  same  shall  not  be  so  returned, 
the  party  receiving  the  same  shall  be  responsible  for  and  forfeit 
and  pay  twice  the  value  thereof,  and  also  $1  per  day  for  each  day's 
detention  beyond  the  limited  time. 

2.  The  clerk  shall  deposit  in  the  law  library,  to  be  there  carefully 
preserved,  one  copy  of  the  printed  record  in  every  case  submitted 
to  the  court  for  its  consideration,  and  of  all  printed  motions,  briefs, 
or  arguments  filed  therein. 

3.  The  marshal  shall  take  charge  of  the  books  of  the  court,  to- 
gether with  such  of  the  duplicate  law  books  as  Congress  may  direct 
to  be  transferred  to  the  court,  and  arrange  them  in  the  conference 
room,  which  he  shall  have  fitted  up  in  a  proper  manner ;  and  he 
shall  not  permit  such  books  to  be  taken  therefrom  by  anyone  except 
the  justices  of  the  court 

8 
WRIT  OF  ERROR  AND  APPEAL,  RETURN,  AND  RECORD 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  di- 
rected shall  make  return  of  the  same,  by  transmitting  a  true  copy 
of  the  record,  and  of  the  assignment  of  errors,  and  of  all  proceed- 
ings in  the  case,  under  his  hand  and  the  seal  of  the  court 

In  order  to  enable  the  clerk  to  perform  such  duty,  and  for  the 
purpose  of  reducing  the  size  of  transcripts  of  record  in  cases  brought 
to  this  court  by  appeal  or  writ  of  error,  by  eliminating  all  papers 
not  necessary  to  the  consideration  of  the  questions  to  be  reviewed, 
it  shall  be  the  duty  of  the  appellant  or  plaintiff  in  error  or  his  at- 
torney to  file  with  the  clerk  of  the  lower  court,  together  with  proof 
or  acknowledgment  of  service  of  a  copy  on  the  appellee  or  defendant 
in  error,  or  his  counsel,  a  praecipe  which  shall  indicate  the  portions 
of  the  record  to  be  incorporated  into  the  transcript  of  the  record  on 
such  appeal  or  writ  of  error.  Should  the  appellee  or  defendant  in 
error,  or  his  counsel,  desire  additional  portions  of  the  record  incor- 
porated into  the  transcript  of  the  record  to  be  filed  in  this  court,  he 
shall  file  with  the  clerk  of  the  lower  court  his  praecipe  also,  within 
ten  days  thereafter  (unless  the  time  shall  be  enlarged  by  a  judge 
of  the  lower  court  or  by  a  justice  of  this  court),  indicating  such  ad- 
ditional portions  of  the  record  desired  by  him. 

The  clerk  of  the  lower  court  shall  transmit  to  this  court  as  the 
transcript  of  the  record  in  the  case  only  the  portions  of  the  record 
below  designated  by  both  parties  as  above  provided. 

The  parties  or  their  counsel,  however,  may  agree  by  written  stip- 
ulation to  be  filed  with  the  clerk  of  the  lower  court  the  portions  of 
the  record  which  shall  constitute  the  transcript  of  record  on  appeal 
or  writ  of  error,  and  the  clerk  in  such  case  shall  transmit  only  the 
papers  designated  in  such  stipulation. 


BULKS  OF  THE   UNITED  STATES  SUPREME   COURT        583 

If  this  court  shall  find  that  portions  of  the  record  unnecessary  to 
a  proper  presentation  of  the  case  have  been  incorporated  into  the 
transcript  by  either  party,  the  court  may  order  that  the  whole  or 
any  part  of  the  clerk's  fee  for  supervising  the  printing  and  of  the 
cost  of  printing  the  record  be  paid  by  the  offending  party. 

2.  In  all  cases  brought  to  this  court  by  writ  of  error  or  appeal, 
to  review  any  Judgment  or  decree,  the  clerk  of  the  court  by  which 
such  judgment  or  decree  was  rendered  shall  annex  to  and  transmit 
with  the  record  a  copy  of  the  opinion  or  opinions  filed  in  the  case. 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in 
itself,  and  not   by  reference,   all  the  papers,   exhibits,  depositions, 
and  other  proceedings  which  are  necessary  to  the  hearing  in  this 
court,  shall  be  filed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of 
the  presiding  judge  in  any  district  court,  that  original  papers  of 
any  kind  should  be  inspected  in  this  court  upon  writ  of  error  or  ap- 
peal, such  presiding  judge  may  make  such  rule  or  order  for  the  safe- 
keeping, transporting,  and  return  of  such  original  papers  as  to  him 
may   seem  proper,   and  this  court  will  receive   and  consider  such 
original  papers  in  connection  with  the  transcript  of  the  proceedings. 

5.  All  appeals,  writs  of  error,  and  citations  must  be  made  return- 
able not  exceeding  thirty  days  from  the  day  of  signing  the  citation, 
whether  the  return  day  fall  in  vacation  or  in  term  time,  and  be 
served  before  the  return  day,  except  in  writs  of  error  and  appeals 
from  California,  Oregon,  Nevada,  Washington,  New  Mexico,   Utah, 
Arizona,  Montana,  Wyoming,  North  Dakota,  South  Dakota,  Alaska, 
Idaho,  Hawaii,  and  Porto  Rico,  when  the  time  shall  be  extended  to 
sixty  days,  and  from  the  Philippine  Islands  to  one  hundred  and 
twenty  days. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction, 
when,  under  the  requirements  of  law,  the  facts  have  been  found  in 
the  court  below,  and  the  power  of  review  is  limited  to  the  determi- 
nation of  questions  of  law  arising  on  the  record,  shall  be  confined 
to  the  pleadings,  the  findings  of  fact,  and  conclusions  of  law  there- 
on, the  bills  of  exceptions,  the  final  judgment  or  decree,  and  such 
interlocutory  orders  and  decrees  as  may  be  necessary  to  a  proper 
review  of  the  case. 

9 

DOCKETING  CASES 

1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to 
docket  the  case  and  file  the  record  thereof  with  the  clerk  of  this 
court  by  or  before  the  return  day,  whether  in  vacation  or  in  term 
time.  But,  for  good  cause  shown,  the  justice  or  judge  who  signed 
the  citation,  or  any  justice  of  this  court,  may  enlarge  the  time,  by  or 
before  its  expiration,  the  order  of  enlargement  to  be  filed  with  the 
clerk  of  this  court.  If  the  plaintiff  in  error  or  appellant  shall  fail 
to  comply  with  this  rule,  the  defendant  in  error  or  appellee  may 


586  APPENDIX 

have  the  cause  docketed  and  dismissed  upon  producing  a  certificate, 
whether  in  term  time  or  vacation,  from  the  clerk  of  the  court  where- 
in the  judgment  or  decree  was  rendered,  stating  the  case  and  certi- 
fying that  such  writ  of  error  or  appeal  has  been  duly  sued  out  or 
allowed.  And  in  no  case  shall  the  plaintiff  in  error  or  appellant 
be  entitled  to  docket  the  case  and  file  the  record  after  the  same  shall 
have  been  docketed  and  dismissed  under  this  rule,  unless  by  order  of 
the  court 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option, 
docket  the  case  and  file  a  copy  of  the  record  with  the  clerk  of  this 
court ;  and  if  the  case  is  docketed  and  a  copy  of  the  record  filed  with 
the  clerk  of  this  court  by  the  plaintiff  in  error  or  appellant  within 
the  period  of  time  above  limited  and  prescribed  by  this  rule,  or  by 
the  defendant  in  error  or  appellee  at  any  time  thereafter,  the  case 
shall  stand  for  argument. 

3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by 
writ  of  error  or  appeal,  the  appearance  of  the  counsel  for  the  party 
docketing  the  case  shall  be  entered. 

1O 

PRINTING  RECORDS 

1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docketing  a 
case  and  filing  the  record,  shall  make  such  cash  deposit  with  the 
clerk  for  the  payment  of  his  fees  as  he  may  require,  or  otherwise 
satisfy  him  in  that  behalf. 

2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost  of 
printing  the  record,  and  of  his  fee  for  preparing  it  for  the  printer 
and  supervising  the  printing,  and  shall  notify  to  the  party  docketing 
the  case  the  amount  of  the  estimate.    If  he  shall  not  pay  it  within 
a  reasonable  time,  and  for  want  of  such  payment  the  record  shall 
not  have  been  printed  when  a  case  is  reached  in  the  regular  call  of 
the  docket,  the  case  shall  be  dismissed. 

3.  Upon  payment  of  the  amount  estimated  by  the  clerk,  thirty 
copies  of  the  record  shall  be  printed,  under  his  supervision,  for  the 
use  of  the  court  and  of  counsel. 

4.  In  cases  of  appellate  jurisdiction  the  original  transcript  on 
file  shall  be  taken  by  the  clerk  to  the  printer.    But  the  clerk  shall 
cause  copies  to  be  made  for  the  printer  of  such  original  papers,  sent 
up  under  rule  8,  §  4,  as  are  necessary  to  be  printed ;  and  of  the  whole 
record  in  cases  of  original  jurisdiction. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  print- 
ed copy  is  properly  indexed.    He  shall  distribute  the  printed  copies 
to  the  justices  and  the  reporter,  from  time  to  time,  as  required,  and 
a  copy  to  the  counsel  for  the  respective  parties. 

6.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee 
of  the  clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the 


RULES  OF  THE  UNITED  STATES  SUPREME  COURT          587 

amount  of  the  difference  shall  be  refunded  by  the  clerk  to  the  party 
paying  it.  If  the  actual  cost  and  clerk's  fee  shall  exceed  the  esti- 
mate, the  amount  of  the  excess  shall  be  paid  to  the  clerk  before  the 
delivery  of  a  printed  copy  to  either  party  or  his  counsel. 

7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the 
amount  of  the  cost  of  printing  the  record  and  of  the  clerk's  fee 
shall  be  taxed  against  the  party  against  whom  costs  are  given,  and 
shall  be  inserted"  in  the  body  of  the  mandate  or  other  proper  process. 

8.  Upon  the  clerk's  producing  satisfactory  evidence,  by  affidavit 
or  the  acknowledgment  of  the  parties  or  their  sureties,  of  having 
served  a  copy  of  the  bill  of  fees  due  by  them,  respectively,  in  this 
court,  on  such  parties  or  their  sureties,  an  attachment  shall  issue 
against  such  parties  or  sureties,  respectively,  to  compel  payment  of 
said  fees. 

9.  The  plaintiff  in  error  or  appellant  may,  within  ninety  days 
after  filing  the  record  in  this  court,  file  with  the  clerk  a  statement 
of  the  errors  on  which  he  intends  to  rely,  and  of  the  parts  of  the 
record  which  he  thinks  necessary  for  the  consideration  thereof,  with 
proof  of  service  of  the  same  on  the  adverse  party.    The  adverse  par- 
ty, within  ninety  days  thereafter,  may  designate  in  writing,   filed 
with  the  clerk,  additional  parts  of  the  record  which  he  thinks  ma- 
terial ;  and,  if  he  shall  not  do  so,  he  shall  be  held  to  have  consented 
to  a  hearing  on  the  parts  designated  by  the  plaintiff  in  error  or 
appellant.    If  parts  of  the  record  shall  be  so  designated  by  one  or 
both  of  the  parties,  the  clerk  shall  print  those  parts  only ;  and  the 
court  will  consider  nothing  but  those  parts  of  the  record,  and  the 
errors  so  stated.    If  at  the  hearing  it  shall  appear  that  any  material 
part  of  the  record  has  not  been  printed,  the  writ  of  error  or  appeal 
may  be  dismissed,  or  such  other  order  made  as  the  circumstances 
may  appear  to  the  court  to  require.     If  the  defendant  in  error  or 
appellee  shall  have  caused  unnecessary  parts  of  the  record  to  be 
printed,  such  order  as  to  costs  may  be  made  as  the  court  shall  think 
proper. 

The  fees  of  the  clerk  under  rule  24,  §  7,  shall  be  computed,  as  at 
present,  on  the  folios  in  the  record  as  filed,  and  shall  be  in  full  for 
the  performance  of  his  duties  in  the  execution  hereof. 

11 

TRANSLATIONS 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of 
error  or  appeal  shall  contain  any  document,  paper,  testimony,  or 
other  proceedings  in  a  foreign  language,  and  the  record  does  not 
also  contain  a  translation  of  such  document,  paper,  testimony,  or 
other  proceedings,  made  under  the  authority  of  the  inferior  court, 
or  admitted  to  be  correct,  the  record  shall  not  be  printed;  but  the 
case  shall  be  reported  to  this  court  by  the  clerk,  and  the  court  will 
order  that  a  translation  be  supplied  and  inserted  in  the  record. 


588  APPENDIX 

12 

FURTHER  PROOF 

1.  In  all  cases  where  further  proof  is  ordered  by  the  court,  the 
depositions  which  may  be  taken  shall  be  by  a  commission,  to  be  is- 
sued from  this  court,  or  from  any  district  court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction,  where  new 
evidence  shall  be  admissible  in  this  court,  the  evidence  by  testimony 
of  witnesses  shall  be  taken  under  a  commission  to  be  issued  from 
this  court,  or  from  any  district  court  of  the  United  States,  under  the 
direction  of  any  judge  thereof;  and  no  such  commission  shall  issue 
but  upon  interrogatories,  to  be  filed  by  the  party  applying  for  the 
commission,  and  notice  to  the  opposite  party  or  his  agent  or  attor- 
ney, accompanied  with  a  copy  of  the  interrogatories  so  filed,  to  file 
cross-interrogatories  within  twenty  days  from  the  service  of  such 
notice:     Provided,  however,  that  nothing  in  this  rule  shall  prevent 
any  party  from  giving  oral  testimony  in  open  court  in  cases  where 
by  law  it  is  admissible. 

13 

OBJECTIONS  TO   EVIDENCE   IN  THE   RECORD 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this 
court,  no  objection  shall  hereafter  be  allowed  to  be  taken  to  the  ad- 
inissibility  of  any  deposition,  deed,  grant,  or  other  exhibit  found  in 
the  record  as  evidence,  unless  objection  was  taken  thereto  in  the 
court  below  and  entered  of  record ;  but  the  same  shall  otherwise  be 
deemed  to  have  been  admitted  by  consent 

14 

CERTIORARI 

No  certiorari  for  diminution  of  the  record  will  be  hereafter  award- 
ed in  any  case,  unless  a  motion  therefor  shall  be  made  in  writing, 
and  the  facts  on  which  the  same  is  founded  shall,  if  not  admitted 
by  the  other  party,  be  verified  by  affidavit.  And  all  motions  for 
certiorari  must  be  made  at  the  first  term  of  the  entry  of  the  case; 
otherwise,  the  same  will  not  be  granted,  unless  upon  special  cause 
shown  to  the  court,  accounting  satisfactorily  for  the  delay. 

15 

DEATH  OF  A  PARTY 

1.  Whenever,  pending  a  writ  of  error  or  appeal  In  this  court, 
either  party  shall  die,  the  proper  representatives  in  the  personalty 
or  realty  of  the  deceased  party,  according  to  the  nature  of  the  case, 
may  voluntarily  come  in  and  be  admitted  parties  to  the  suit,  and 
thereupon  the  case  shall  be  heard  and  determined  as  in  other  cases ;. 


RULES  OF  THE  UNITED  STATES  SUPREME  COURT          589 

and  If  such  representatives  shall  not  voluntarily  become  parties, 
then  the  other  party  may  suggest  the  death  on  the  record,  and  there- 
upon, on  motion,  obtain  an  order  that  unless  such  representatives 
shall  become  parties  within  the  first  ten  days  of  the  ensuing  term, 
the  party  moving  for  such  order,  if  defendant  in  error  or  appellee, 
shall  be  entitled  to  have  the  writ  of  error  or  appeal  dismissed ;  and 
if  the  party  so  moving  shall  be  plaintiff  in  error  or  appellant,  he 
shall  be  entitled  to  open  the  record,  and  on  hearing  have  the  judg- 
ment or  decree  reversed,  if  it  be  erroneous:  Provided,  however,  that 
a  copy  of  every  such  order  shall  be  printed  in  some  newspaper  of 
general  circulation  within  the  state,  territory,  or  district  from  which 
the  case  is  brought,  for  three  successive  weeks,  at  least  sixty  days 
before  the  beginning  of  the  term  of  the  Supreme  Court  then  next 
ensuing. 

2.  When  the  death  of  a  party  is  suggested,  and  the  representa- 
tives of -the  deceased  do  not  appear  by  the  tenth  day  of  the  second 
term  next  succeeding  the  suggestion,  and  no  measures  are  taken  by 
the  opposite  party  within  that  time  to  compel  their  appearance,  the 
case  shall  abate. 

3.  When  either  party  to  a  suit  in  a  court  of  the  United  States 
shall  desire  to  prosecute  a  writ  of  error  or  appeal  to  the  Supreme 
Court  of  the  United  States,  from  any  final  judgment  or  decree,  ren- 
dered in  such  court,  and  at  the  time  of  suing  out  such  writ  of  error 
or  appeal  the  other  party  to  the  suit  shall  be  dead  and  have  no  prop- 
er representative  within  the  jurisdiction  of  the  court  which  rendered 
such  final  judgment  or  decree,  so  that  the  suit  cannot  be  revived  in 
that  court,  but  shall  have  a  proper  representative  in  some  state  or 
territory  of  the  United  States,  the  party  desiring  such  writ  of  error 
or  appeal  may  procure  the  same,  and  may  have  proceedings  on  such 
judgment  or  decree  superseded  or  stayed  in  the  same  manner  as  is 
now  allowed  by  law  in  other  cases,  and  shall  thereupon  proceed 
with  such  writ  of  error  or  appeal  as  in  other  cases.     And  within 
thirty  days  after  the  commencement  of  the  term  to  which  such  writ 
of  error  or  appeal  is  returnable,  the  plaintiff  in  error  or  appellant 
shall  make  a  suggestion  to  the  court,  supported  by  affidavit,  that 
the  said  party  was  dead  when  the  writ  of  error  or  appeal  was  taken 
or  sued  out,  and  had  no  proper  representative  within  the  jurisdic- 
tion of  the  court  which  rendered  said  judgment  or  decree,  so  that 
the  suit  could  not  be  revived  in  that  court,  and  that  said  party  had 
a  proper  representative  in  some  state  or  territory  of  the  United 
States,  and  stating  therein  the  name  and  character  of  such  repre- 
sentative, and  the  state  or  territory  in  which  such  representative 
resides;  and,  upon  such  suggestion,  he  may,  on  motion,  obtain  an  or- 
der  that,   unless  such   representative   shall   make   himself  a  party 
within  the  first  ten  days  of  the  ensuing  term  of  the  court,  the  plain- 
tiff in  error  or  appellant  shall  be  entitled  to  open  the  record,  and, 
on  hearing,  have  the  judgment  or  decree  reversed,  if  the  same  be 
erroneous:     Provided,  however,  that  a  proper  citation  reciting  the 


590  APPENDIX 

substance  of  such  order  shall  be  served  upon  such  representative, 
either  personally  or  by  being  left  at  his  residence,  at  least  sixty 
days  before  the  beginning  of  the  term  of  the  Supreme  Court  then 
next  ensuing:  And  provided,  also,  that  in  every  such  case  if  the 
representative  of  the  deceased  party  does  not  appear  by  the  tenth 
day  of  the  term  next  succeeding  said  suggestion,  and  the  measures 
above  provided  to  compel  the  appearance  of  such  representative 
have  not  been  taken  within  time  as  above  required,  by  the  opposite 
party,  the  case  shall  abate:  And  provided,  also,  that  the  said  repre- 
sentative may  at  any  time  before  or  after  said  suggestion  come  in 
and  be  made  a  party  to  the  suit,  and  thereupon  the  case  shall  pro- 
ceed, and  be  heard  and  determined  as  in  other  cases. 

16 

NO  APPEARANCE  OF  PLAINTIFF  IN  ERROR  OR  APPELLANT 

Where  no  counsel  appears  and  no  brief  has  been  filed  for  the 
plaintiff  in  error  or  appellant,  when  the  case  is  called  for  trial,  the 
defendant  in  error  or  appellee  may  have  the  plaintiff  in  error  or 
appellant  called  and  the  writ  of  error  or  appeal  dismissed,  or  may 
open  the  record  and  pray  for  an  affirmance. 

17 

NO  APPEARANCE  OF  DEFENDANT  IN  ERROR  OR  APPELLEE 

Where  the  defendant  in  error  or  appellee  fails  to  appear  when 
the  case  is  called  for  trial,  the  court  may  proceed  to  hear  an  argu- 
ment on  the  part  of  the  plaintiff  in  error  or  appellant,  and  to  give 
judgment  according  to  the  right  of  the  case. 

18 

NO  APPEARANCE  OF  EITHER  PARTY 

When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there 
is  no  appearance  for  either  party,  the  case  shall  be  dismissed  at  the 
cost  of  the  plaintiff  in  error  or  appellant. 

19 

NEITHER  PARTY  READY  AT  SECOND  TERM 

When  a  case  is  called  for  argument  at  two  successive  terms,  and 
upon  the  call  at  the  second  term  neither  party  is  prepared  to  argue 
it,  it  shall  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appel- 
lant, unless  sufficient  cause  is  shown  for  further  postponement. 


RULES  OF  THE  UNITED  STATES  SUPREME  COURT          591 

2O 

PRINTED  ARGUMENTS 

1.  In  all  cases  brought  here  on  writ  of  error,  appeal,  or  otherwise, 
the  court  will  receive  printed  arguments  without  regard  to  the  num- 
ber of  the  case  on  the  docket,  if  the  counsel  on  both  sides  shall 
choose  to  submit  the  same  within  the  first  ninety  days  of  the  term; 
and,  in  addition,  appeals  from  the  court  of  claims  may  be  submitted 
by  both  parties  within  thirty  days  after  they  are  docketed,  but  not 
after  the  first  day  of  April;  but  thirty  copies  of  the  arguments, 
signed  by  attorneys  or  counselors  of  this  court,  must  be  first  filed. 

2.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and 
a  printed  argument  shall  be  filed  for  one  or  both  parties,  the  case 
shall  stand  on  the  same  footing  as  if  there  were  an  appearance  by 
counsel. 

3.  When  a  case  is  taken  up  for  trial  upon  the  regular  call  of  the 
docket,  and  argued  orally  in  behalf  of  only  one  of  the  parties,  no 
printed  argument  for  the  opposite  party  will  be  received,  unless  it 
is  filed  before  the  oral  argument  begins,  and  the  court  will  proceed 
to  consider  and  decide  the  case  upon  the  ex  parte  argument. 

4.  No  brief  or  argument  will  be  received,   either  through  the 
clerk  or  otherwise,  after  a  case  has  been  argued  or  submitted,  ex- 
cept upon  leave  granted  in  open  court  after  notice  to  opposing  coun- 
sel. 

21 

BRIEFS 

1.  The  counsel  for  plaintiff  in  error  or  appellant  shall  file  with 
the  clerk  of  the  court,  at  least  three  weeks  before  the  case  is  called 
for  argument,  thirty  copies  of  a  printed  brief,  one  of  which  shall, 
on  application,  be  furnished  to  each  of  the  counsel  engaged  upon 
the  opposite  side. 

2.  This  brief  shall  contain,  in  the  order  here  stated — 

(1)  A  concise  abstract,  or  statement  of  the  case,  presenting  suc- 
cinctly the  questions  involved  and  the  manner  in  which  they  are 
raised. 

(2)  A   specification   of  the   errors   relied   upon,   which,   in   cases 
brought  up  by  writ  of  error,  shall  set  out  separately  and  particu- 
larly each  error  asserted  and  intended  to  be  urged;  and  in  cases 
brought  up  by  appeal  the  specification  shall  state,  as  particularly 
as  may  be,  in  what  the  decree  is  alleged  to  be  erroneous.    When  the 
error  alleged  is  to  the  admission  or  to  the  rejection  of  evidence,  the 
specification  shall  quote  the  full  substance  of  the  evidence  admitted 
or  rejected.    When  the  error  alleged  is  to  the  charge  of  the  court, 
the  specification  shall  set  out  the  part  referred  to  totidem  verbis, 
whether  it  be  instructions  given  or  instructions  refused.    When  the 


592  APPENDIX 

error  alleged  is  to  a  ruling  upon  the  report  of  a  master,  the  specifi- 
cation shall  state  the  exception  to  the  report  and  the  action  of  the 
court  upon  it. 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages 
of  the  record  and  the  authorities  relied  upon  in  support  of  each 
point.  When  a  statute  of  a  state  is  cited,  so  much  thereof  as  may 
be  deemed  necessary  to  the  decision  of  the  case  shall  be  printed  at 
length. 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file 
with  the  clerk  thirty  printed  copies  of  his  argument,  at  least  one 
week  before  the  case  is  called  for  hearing.    His  brief  shall  be  of  like 
character  with  that  required  of  the  plaintiff  in  error  or  appellant, 
except  that  no  specification  of  errors  shall  be  required,  and  no  state- 
ment of  the  case,  unless  that  presented  by  the  plaintiff  in  error  or 
appellant  is  controverted. 

4.  When  there  is  no  assignment  of  errors,  as  required  by  §  997 
of  the  Revised  Statutes,  counsel  will  not  be  heard,  except  at  the  re- 
quest of  the  court ;  and  errors  not  specified  according  to  this  rule  will 
be  disregarded ;  but  the  court,  at  its  option,  may  notice  a  plain  error 
not  assigned  or  specified. 

5.  When,  according  to  this  rule,  a  plaintiff  in  error  or  an  appel- 
lant is  in  default,  the  case  may  be  dismissed  on  motion ;  and  when 
a  defendant  in  error  or  an  appellee  is  in  default,  he  will  not  be 
heard,  except  on  consent  of  his  adversary,  and  by  request  of  the 
court. 

6.  When  no  oral  argument  is  made  for  one  of  the  parties,  only 
one  counsel  will  be  heard  for  the  adverse  party. 

7.  No  brief  or  printed  argument,  required  by  the  foregoing  sec- 
tions, shall  be  filed  by  the  clerk  unless  the  same  shall  be  accompa- 
nied by  satisfactory  proof  of  service  upon  counsel  for  the  adverse 
party. 

8.  Every  brief  of  more  than  20  pages  shall  contain  on  its  front 
fly  leaves  a  subject  index  with  page  references,  the  subject  index  to 
be  supplemented  by  a  list  of  all  cases  referred  to,  alphabetically  ar- 
ranged, together  with  references  to  pages  where  cases  are  cited. 

22 

ORAL  ARGUMENTS 

1.  The  plaintiff  in  error  or  appellant  in  this  court  shall  be  enti- 
tled to  open  and  conclude  the  argument  of  the  case.     But  when 
there  are  cross  appeals  they  shall  be  argued  together  as  one  case, 
and  the  plaintiff  in  the  court  below  shall  be  entitled  to  open  and 
conclude  the  argument. 

2.  Only  two  counsel  will  be  heard  for  each  party  on  the  argu- 
ment of  a  case. 


RULES  OF  THE  UNITED  STATES  SUPREME  COURT          593 

3.  One  and  one-half  hours  on  each  side  will  be  allowed  for  the 
argument,  and  no  more,  without  special  leave  of  the  court,  granted 
before  the  argument  begins.  But  in  cases  certified  from  the  circuit 
courts  of  appeals,  cases  involving  solely  the  jurisdiction  of  the  court 
below,  and  cases  under  the  act  of  March  2,  1907,  34  Stat.  1246,  forty- 
five  minutes  only  on  each  side  will  be  allowed  for  the  argument  un- 
less the  time  be  extended.  The  time  thus  allowed  may  be  appor- 
tioned between  the  counsel  on  the  same  side,  at  their  discretion ; 
provided,  always,  that  a  fair  opening  of  the  case  shall  be  made  by 
the  party  having  the  opening  and  closing  arguments. 


23 

INTEREST 

1.  In  cases  where  a  writ  of  error  is  prosecuted  to  this  court,  and 
the  judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be 
calculated  and  levied,  from  the  date  of  the  judgment  below  until  the 
same  is  paid,  at  the  same  rate  that  similar  judgments  I  ~-\r  interest 
in  the  courts  of  the  state  where  such  judgment  is  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings 
on  the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been 
sued  out  merely  for  delay,  damages  at  a  rate  not  exceeding  10  per 
cent,  in  addition  to  interest,  shall  be  awarded  upon  the  amount  of 
the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of 
money  in  cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed  if 
specially  directed  by  the  court. 


24 

COSTS 

1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court, 
costs  shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless 
otherwise  agreed  by  the  parties,  except  where  the  dismissal  shall  be 
for  want  of  jurisdiction,  when  the  costs  incident  to  the  motion  to  dis- 
miss shall  be  allowed. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this 
court,  costs  shall  be  allowed  to  the  defendant  in  error  or  appellee, 
unless  otherwise  ordered  by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  plaintiff  in  error  or  appellant,  unless 
otherwise  ordered  by  the  court.     The  cost  of  the  transcript  of  the 
record  from  the  court  below  shall  be  a  part  of  such  costs,  and  be 
taxable  in  that  court  as  costs  in  the  case. 

HUGHES  FED.PB.(2o  ED.) — 38 


594  APPENDIX 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where 
the  United  States  are  a  party;  but  in  such  cases  no  costs  shall  be 
allowed  in  this  court  for  or  against  the  United  States. 

5.  In  all  cases  of  the  dismissal  of  any  suit  in  this  court,  it  shall 
be  the  duty  of  the  clerk  to  issue  a  mandate,  or  other  proper  process, 
in  the  nature  of  a  procedendo,  to  the  court  below,  for  the  purpose  of 
informing  such  court  of  the  proceedings  in  this  court,  so  that  fur- 
ther proceedings  may  be  had  in  such  court  as  to  law  and  justice  may 
appertain. 

6.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of 
the  clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate, 
or  other  proper  process,  sent  to  the  court  below,  and  annex  to  the 
same  the  bill  of  items  taxed  in  detail. 

7.  In  pursuance  of  the  act  of  March  3,  1883,  authorizing  and  em- 
powering this  court  to  prepare  a  table  of  fees  to  be  charged  by  the 
clerk  of  this  court,  the  following  table  is  adopted: 

For  docketing  a  case  and  filing  and  indorsing  the  transcript  of 
the  record,  $5. 

For  entering  an  appearance,  25  cents. 

For  entering  a  continuance,  25  cents. 

For  filing  a  motion,  order,  or  other  paper,  25  cents. 

For  entering  any  rule,  or  for  making  or  copying  any  record  or 
other  paper,  20  cents  per  folio  of  each  one  hundred  words. 

For  transferring  each  case  to  a  subsequent  docket  and  indexing 
the  same,  $1. 

For  entering  a  judgment  or  decree,  $1. 

For  every  search  of  the  records  of  the  court,  $1. 

For  a  certificate  and  seal,  $2. 

For  receiving,  keeping,  and  paying  money  in  pursuance  of  any 
statute  or  order  of  court,  2  per  cent  on  the  amount  so  received, 
kept,  and  paid. 

For  an  admission  to  the  bar  and  certificate  under  seal,  $10. 

For  preparing  the  record  or  a  transcript  thereof  for  the  printer, 
indexing  the  same,  supervising  the  printing,  and  distributing  the 
printed  copies  to  the  justices,  the  reporter,  the  law  library,  and  the 
parties  or  their  counsel,  15  cents  per  folio ;  but  when  the  necessary 
printed  copies  of  the  record,  as  printed  for  the  use  of  the  lower 
court,  shall  be  furnished,  the  fee  for  supervising  shall  be  5  cents  per 
folio. 

For  making  a  manuscript  copy  of  the  record,  when  required  un- 
der rule  10,  20  cents  per  folio,  but  nothing  in  addition  for  supervis- 
ing the  printing. 

For  issuing  a  writ  of  error  and  accompanying  papers,  $5. 

For  a  mandate  or  other  process,  $5. 

For  filing  briefs,  $5  for  each  party  appearing. 

For  every  printed  copy  of  any  opinion  of  the  court  or  any  justice 
thereof,  certified  under  seal,  $2. 


BULKS  OF  THE  UNITED  STATES  SUPREME  COUET  595 

25 

OPINIONS  OF  THE  COURT 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon 
the  delivery  thereof,  be  handed  to  the  clerk  to  be  printed.     And 
it  shall  be  the  duty  of  the  clerk  to  cause  the  same  to  be  forthwith 
printed,  and  to  deliver  a  copy  to  the  reporter  as  soon  as  the  same 
shall  be  printed. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk 
of  this  court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  justices  deliver- 
ing the  same  need  not  be  copied  by  the  clerk  into  a  book  of  records ; 
but  at  the  end  of  each  term   the  clerk   shall   cause   such  printed 
opinions  to  be  bound  in  a  substantial  manner  into  one  or  more  vol- 
umes, and  when  so  bound  they  shall,  be  deemed  to  have  been  re- 
corded. 

26 

CALL  AND  ORDER  OF  THE  DOCKET 

1.  The  court,  on  the  second  day  in  each  term,  will  commence  call- 
ing the  cases  for  argument  in  the  order  in  which  they  stand  on  the 
docket,  and  proceed  from  day  to  day  during  the  term  in  the  same 
order  (except  as  hereinafter  provided) ;  and  if  the  parties,  or  either 
of  them,  shall  be  ready  when  the  case  is  called,  the  same  will  be 
heard;  and  if  neither  party  shall  be  ready  to  proceed  in  the  argu- 
ment, the  case  shall  be  continued  to  the  next  term  of  the  court  un- 
less some  good  and   satisfactory  reason   to   the  contrary   shall   be 
shown  to  the  court. 

2.  Ten  cases  only  shall  be  considered  as  liable  to  be  called  on 
each  day  during  the  term.     But  on  the  coming  in  of  the  court  on 
each  day  the  entire  number  of  such  ten  cases  will  be  called,  with  a 
view  to  the  disposition  of  such  of  them  as  are  not  to  be  argued. 

3.  Criminal  cases  may  be  advanced  by  leave  of  the  court  on  mo- 
tion of  either  party. 

4.  Cases  once  adjudicated  by   this  court  upon   the  merits,  and 
again  brought  up  by  writ  of  error  or  appeal,  may  be  advanced  by 
leave  of  the  court  on  motion  of  either  party. 

5.  Revenue  and  other  cases  in  which  the  United  States  are  con- 
cerned, which  also  involve  or  affect  some  matter  of  general  public 
interest,  or  which  may  be  entitled  to  precedence  under  the  provisions 
of  any  act  of  Congress,  may  also  by  leave  of  the  court  be  advanced 
on  motion  of  the  Attorney  General. 

6.  All  motions  to  advance  cases  must  be  printed,  and  must  con- 
tain a  brief  statement  of  the  matter  involved,  with  the  reasons  for 
the  application. 


596  APPENDIX 

7.  No  other  case  will  be  taken  up  out  of  the  order  on  the  docket, 
or  be  set  down  for  any  particular  day,  except  under  special  and  pe- 
culiar circumstances  to  be  shown  to  the  court. 

8.  Two  or  more  cases,  involving  the  same  question,  may,  by  the 
leave  of  the  court,  be  heard  together,  but  they  must  be  argued  as 
one  case. 

9.  If,  after  a  case  has  been  passed,  the  parties  shall  desire  to 
have  it  heard,  they  may  file  with  the  clerk  their  joint  request  to 
that  effect,  and  the  case  shall  then  be  by  him  reinstated  for  call  ten 
cases  after  that  under  argument,  or  next  to  be  called  at  the  end  of 
the  day  the  request  is  filed.    If  the  parties  will  not  unite  in  such  a 
request,  either  may  move  to  take  up  the  case,  and  it  shall  then  be 
assigned  to  such  place  upon  the  docket  as  the  court  may  direct. 

10.  No  stipulation  to  pass  a  case  will  be  recognized  as  binding  up- 
on the  court.     A  case  can  only  be  so  passed  upon  application  made 
and  leave  granted  in  open  court. 

27 

ADJOURNMENT 

The  court  will,  at  every  term,  announce  on  what  day  it  will  ad- 
journ at  least  ten  days  before  the  time  which  shall  be  fixed  upon, 
and  the  court  will  take  up  no  case  for  argument,  nor  receive  any 
case  upon  printed  briefs,  within  three  days  next  before  the  day 
fixed  upon  for  adjournment. 

28 
DISMISSING  CASES  IN  VACATION 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending 
in  this  court,  or  the  appellant  and  appellee  in  an  appeal,  shall  in 
vacation,  by  their  attorneys  of  record,  sign  and  file  with  the  clerk 
an  agreement  in  writing  directing  the  case  to  be  dismissed,  and  speci- 
fying the  terms  on  which  it  is  to  be  dismissed  as  to  costs,  and  shall 
pay  to  the  clerk  any  fees  that  may  be  due  to  him,  it  shall  be  the 
duty  of  the  clerk  to  enter  the  case  dismissed,  and  to  give  to  either 
party  requesting  it  a  copy  of  the  agreement  filed ;  but  no  mandate  or 
other  process  shall  issue  without  an  order  of  the  court. 

29 

SUPERSEDEAS 

(See  ante,  p.  557.) 

3O 

REHEARING 

A  petition  for  rehearing  after  judgment  can  be  presented  only  at 
the  term  at  which  judgment  is  entered,  unless  by  special  leave  grant- 
ed during  the  term;  and  must  be  printed  and  briefly  and  distinctly 


RULES  OF  THE  UNITED  STATES  SUPREME  COURT          597 

state  its  grounds,  and  be  supported  by  certificate  of  counsel;  and  will 
not  be  granted,  or  permitted  to  be  argued,  unless  a  justice  who  con- 
curred in  the  judgment  desires  it,  and  a  majority  of  the  court  so 
determines. 

31 

FORM  OF  PRINTED  RECORDS  AND  BRIEFS 

All  records,  arguments,  and  briefs,  printed  for  the  use  of  the 
court,  must  be  in  such  form  and  size  that  they  can  be  convenient- 
ly bound  together,  so  as  to  make  an  ordinary  octavo  volume;  and, 
as  well  as  all  quotations  contained  therein,  and  the  covers  there- 
df,  must  be  printed  in  clear  type  (never  smaller  than  small  pica)  and 
on  unglazed  paper. 

32 

WRITS  OF  ERROR  AND  APPEALS  IN  CASES  INVOLVING  JU- 
RISDICTION OF  LOWER  COURT 

Cases  brought  to  this  court  by  writ  of  error  or  appeal,  where  the 
only  question  in  issue  is  the  question  of  the  jurisdiction  of  the  court 
below,  will  be  advanced  on  motion,  and  heard  under  the  rules  pre- 
scribed by  rule  6,  in  regard  to  motions  to  dismiss  writs  of  error  and 
appeals. 

33 

MODELS,  DIAGRAMS,  AND  EXHIBITS  OF  MATERIAL 

1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court, 
on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the 
marshal  of  this  court  at  least  one  month  before  the  case  is  heard  or 
submitted. 

2.  All  models,  diagrams,  and  exhibits  of  material,  placed  in  the 
custody  of  the  marshal  for  the  inspection  of  the  court  on  the  hear- 
ing of  a  case,  must  be  taken  away  by  the  parties  within  one  month 
after  the  case  is  decided.     When  this  is  not  done,  it  shall  be  the 
duty  of  the  marshal  to  notify  the  counsel  in  the  case,  by  mail  or  oth- 
erwise, of  the  requirements  of  this  rule;   and  if  the  articles  are  not 
removed  within  a  reasonable  time  after  the  notice  is  given,  he  shall 
destroy  them   or   make  such   other  disposition  of  them  as  to  him 
may  seem  best 

34 

CUSTODY    OF    PRISONERS    ON   HABEAS    CORPUS 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  pris- 
oner shall  not  be  disturbed. 


598  APPENDIX 

2.  Pending  an  appeal  from  the  final  decision   of   any  court  or 
judge  discharging  the  writ  after  it  has  been  issued,  the  prisoner 
shall  be  remanded  to  the  custody  from  which  he  was  taken  by  the 
writ,  or  shall,  for  good  cause  shown,  be  detained  in  custody  of  the 
court  or  judge,  or  be  enlarged  upon  recognizance  as  hereinafter  pro- 
vided. 

3.  Pending  an  appeal  from   the  final  decision  of  any  court  or 
judge  discharging  the  prisoner,  he  shall  be  enlarged  upon  recogni- 
zance, with  surety,  for  appearance  to  answer  the  judgment  of  the 
appellate  court,  except  where,  for  special  reasons,  sureties  ought  not 
to  be  required. 

35 

ASSIGNMENT  OF  ERRORS 

1.  See  ante,  p.  552. 

2.  The  plaintiff  in  error  or  appellant  shall  cause  the  record  to  be 
printed,  according  to  the  provisions  of  §§  2,  3,  4,  5,  6,  and  9,  of 
rule  10. 

36 

APPEALS  AND  WRITS  OF  ERROR  FROM  DISTRICT  COURTS 

1.  See  ante,  p.  551. 

2.  Where  such  writ  of  error  is  allowed  in  the  case  of  a  conviction 
of  an  infamous  crime,  or  in  any  other  criminal  case  in  which  it 
will  lie  under  section  238,  the  district  court,  or  any  judge  thereof,  or 
any  justice  of  this  court,  or  any  circuit  judge  assigned  to  the  dis- 
trict court,  shall  have  power,  after  the  citation  is  served,  to  admit 
the  accused  to  bail  in  such  amount  as  may  be  fixed, 

37 

CASES  FROM  CIRCUIT  COURTS  OF  APPEALS 

1.  See  ante,  p.  516. 

2.  If  application  is  thereupon  made  to  this  court  that  the  whole 
record  and  cause  may  be  sent  up  to  it  for  its  consideration,  the 
party  making    such   application    shall,   as   a   part  thereof,    furnish 
this  court  with  a  certified  copy  of  the  whole  of  said  record. 

"3.  Where  an  application  is  submitted  to  this  court  for  a  writ 
of  certiorari  to  review  a  decision  of  a  Circuit  Court  of  Appeals  or 
any  other  court,  it  shall  be  necessary  for  the  petitioner  to  furnish 
as  an  exhibit  to  the  petition  a  certified  copy  of  the  entire  transcript 
of  record  of  the  case,  including  the  proceedings  in  the  court  to  which 
the  writ  of  certiorari  is  asked  to  be  directed.  The  petition  shall 
contain  only  a  summary  and  short  statement  of  the  matter  involved 
and  the  general  reasons  relied  on  for  the  allowance  of  the  writ  A 
failure  to  comply  with  this  provision  will  be  deemed  a  sufficient  rea- 
son for  denying  the  petition.  Thirty  printed  copies  of  such  petition 


EULE8  OF  THE  UNITED  STATES  SUPREME  COURT          599 

and  of  any  brief  deemed  necessary  shall  be  filed.  Notice  of  the  date 
of  submission  of  the  petition,  together  with  a  copy  of  the  petition 
and  brief,  if  any,  in  support  of  the  same  shall  be  served  on  the 
counsel  for  the  respondent  at  least  two  weeks  before  such  date  in 
all  cases  except  where  the  counsel  to  be  notified  resides  west  of  the 
Rocky  Mountains,  in  which  cases  the  time  shall  be  at  least  three 
weeks.  The  brief  for  the  respondent,  if  any,  shall  be  filed  at  least 
three  days  before  the  date  fixed  for  the  submission  of  the  petition. 
Oral  argument  will  not  be  permitted  on  such  petitions,  and  no  peti- 
tion will  be  received  within  three  days  next  before  the  day  fixed 
upon  for  the  adjournment  of  the  court  for  the  term." 

38 

INTEREST,  COSTS,  AND  FEES 

The  provisions  of  rules  23  and  24  of  this  court,  in  regard  to  Interest 
and  costs  and  fees,  shall  apply  to  writs  of  error  and  appeals  and  re- 
views under  the  provisions  of  §§  238,  239,  240,  and  241  of  the  act  en- 
titled, "An  Act  to  Codify,  Revise,  and  Amend  the  Laws  Relating  to 
the  Judiciary,"  approved  March  3,  1911,  chapter  231. 

39 

MANDATES 

Mandates  shall  issue  as  of  course  after  the  expiration  of  thirty 
days  from  the  day  the  judgment  or  decree  is  entered,  unless  the  time 
is  enlarged  by  order  of  the  court,  or  of  a  justice  thereof  when  the 
court  is  not  in  session,  but  during  the  term. 

•0 

PRACTICE  IN  CASES  FROM  CIRCUIT  COURTS  OF   APPEALS 

The  provisions  of  these  rules  relating  to  the  practice  on  direct 
writs  of  error  to  and  appeals  from  the  district  courts  shall  also  be 
deemed  to  relate  to  and  cover  the  practice  on  writs  of  error  to  and 
appeals  from  the  circuit  courts  of  appeals. 


RULES  OF  PRACTICE 

"~  FOR  THE 

COURTS  OF  EQUITY  OF  THE  UNITED  STATES 

PROMULGATED  BY  THE  SUPREME  COURT  OF  THE 
UNITED  STATES  NOVEMBER  4, 1912 


RULE    1 

DISTRICT  COURT  ALWAYS  OPEN  FOR  CERTAIN  PURPOSES- 
ORDERS  AT  CHAMBERS 

The  District  Courts,  as  courts  of  equity,  shall  be  deemed  always 
open  for  the  purpose  of  filing  any  pleading,  of  issuing  and  return- 
ing mesne  and  final  process,  and  of  making  and  directing  all  inter- 
locutory motions,  orders,  rules  and  other  proceedings  preparatory 
to  the  hearing  upon  their  merits,  of  all  causes  pending  therein. 

Any  District  Judge  may,  upon  reasonable  notice  to  the  parties, 
make,  direct,  and  award,  at  chambers  or  in  the  clerk's  office,  and  in 
vacation  as  well  as  in  term,  all  such  process,  commissions,  orders, 
rules  and  other  proceedings,  whenever  the  same  are  not  grantable 
of  course,  according  to  the  rules  and  practice  of  the  court 

2 

CLERK'S  OFFICE  ALWAYS  OPEN,  EXCEPT,  ETC. 

The  clerk's  office  shall  be  open  during  business  hours  on  all  days, 
except  Sundays  and  legal  holidays,  and  the  clerk  shall  be  in  attend- 
ance for  the  purpose  of  receiving  and  disposing  of  all  motions,  rules, 
orders  and  other  proceedings  which  are  grantable  of  course. 


BOOKS   KEPT  BY  CLERK  AND  ENTRIES  THEREIN 

The  clerk  shall  keep  a  book  known  as  "Equity  Docket,"  in  which 
he  shall  enter  each  suit,  with  a  file  number  corresponding  to  the 
folio  in  the  book.  All  papers  and  orders  filed  with  the  clerk  in  the 
suit,  all  process  issued  and  returns  made  thereon,  and  all  appear- 
ances shall  be  noted  briefly  and  chronologically  in  this  book  on  the 
folio  assigned  to  the  suit  and  shall  be  marked  with  its  file  number. 
HUGHES  FED.PR.(2o  ED.)  (601) 


602  APPENDIX 

The  clerk  shall  also  keep  a  hook  entitled  "Order  Book,"  in  which 
shall  be  entered  at  length,  in  the  order  of  their  making,  all  orders 
made  or  passed  by  him  as  of  course  and  also  all  orders  made  or 
passed  by  the  judge  in  chambers. 

He  shall  also  keep  an  "Equity  Journal,"  in  which  shall  be  entered 
all  orders,  decrees  and  proceedings  of  the  court  in  equity  causes  in 
term  time. 

Separate  and  suitable  indices  of  the  Equity  Docket,  Order  Book 
and  Equity  Journal  shall  be  kept  by  the  clerk  under  the  direction  of 
the  court. 


NOTICE  OF  ORDERS 

Neither  the  noting  of  an  order  in  the  Equity  Docket  nor  its  en- 
try in  the  Order  Book  shall  of  itself  be  deemed  notice  to  the  par- 
ties or  their  solicitors ;  and  when  an  order  is  made  without  prior 
notice  to,  and  in  the  absence  of,  a  party,  the  clerk,  unless  otherwise 
directed  by  the  court  or  judge,  shall  forthwith  send  a  copy  thereof, 
by  mail,  to  such  party  or  his  solicitor  and  a  note  of  such  mailing  shall 
be  made  in  the  Equity  Docket,  which  shall  be  taken  as  sufficient 
proof  of  due  notice  of  the  order. 

5 

MOTIONS  GRANTABLE  OF  COURSE  BY  CLERK 

All  motions  and  applications  in  the  clerk's  office  for  the  issuing 
of  mesne  process  or  final  process  to  enforce  and  execute  decrees; 
for  taking  bills  pro  confesso ;  and  for  other  proceedings  in  the  clerk's 
office  which  do  not  require  any  allowance  or  order  of  the  court  or 
of  a  judge,  shall  be  deemed  motions  and  applications  grantable  of 
course  by  the  clerk ;  but  the  same  may  be  suspended,  or  altered,  or 
rescinded  by  the  judge  upon  special  cause  shown. 


MOTION  DAY 

Each  District  Court  shall  establish  regular  times  and  places,  not 
less  than  once  each  month,  when  motions  requiring  notice  and  hear- 
ing may  be  made  and  disposed  of;  but  the  judge  may  at  any  time 
and  place,  and  on  such  notice,  if  any,  as  he  may  consider  reason- 
able, make  and  direct  all  interlocutory  orders,  rulings  and  pro- 
ceedings for  the  advancement,  conduct  and  hearing  of  causes.  If  the 
public  interest  permits,  the  senior  Circuit  Judge  of  the  circuit  may 
dispense  with  the  motion  day  during  not  to  exceed  two  months  in 
the  year  in  any  district. 


BULES  OF  PRACTICE  FOB  COUBT8  OF  EQUITY  OF  U.  8.         603 


PROCESS,    MESNE    AND    FINAL 

The  process  of  subpoena  shall  constitute  the  proper  mesne  process 
in  all  suits  in  equity,  in  the  first  instance,  to  require  the  defendant 
to  appear  and  answer  the  bill;  and,  unless  otherwise  provided  in 
these  rules  or  specially  ordered  by  the  court,  a  writ  of  attachment 
and,  if  the  defendant  cannot  be  found,  a  writ  of  sequestration,  or  a 
writ  of  assistance  to  enforce  a  delivery  of  possession,  as  the  case 
may  require,  shall  be  the  proper  process  to  issue  for  the  purpose  of 
compelling  obedience  to  any  interlocutory  or  final  order  or  decree  of 
the  court. 

8 

ENFORCEMENT  OF  FINAL  DECREES 

Final  process  to  execute  any  decree  may,  if  the  decree  be  solely 
for  the  payment  of  money,  be  by  a  writ  of  execution,  in  the  form 
used  in  the  District  Court  in  suits  at  common  law  in  actions  of 
assumpsit.  If  the  decree  be  for  the  performance  of  any  specific  act, 
as,  for  example,  for  the  execution  of  a  conveyance  of  land  or  the 
delivering  up  of  deeds  or  other  documents,  the  decree  shall  in  all 
cases,  prescribe  the  time  within  which  the  act  shall  be  done,  of 
which  the  defendant  shall  be  bound,  without  further  service,  to  take 
notice;  and  upon  affidavit  of  the  plaintiff,  filed  in  the  clerk's  of- 
fice, that  the  same  has  not  been  complied  with  within  the  prescribed 
time,  the  clerk  shall  issue  a  writ  of  attachment  against  the  delin- 
quent party,  from  which,  if  attached  thereon,  he  shall  not  be  dis- 
charged, unless  upon  a  full  compliance  with  the  decree  and  the 
payment  of  all  costs,  or  upon  a  special  order  of  the  court,  or  a 
judge  thereof,  upon  motion  and  affidavit,  enlarging  the  time  for  the 
performance  thereof.  If  the  delinquent  party  cannot  be  found  a 
writ  of  sequestration  shall  issue  against  his  estate,  upon  the  return 
of  non  est  inventus,  to  compel  obedience  to  the  decree.  If  a  man- 
datory order,  injunction  or  decree  for  the  specific  performance  of 
any  act  or  contract  be  not  complied  with,  the  court  or  a  judge,  be- 
sides, or  instead  of,  proceedings  against  the  disobedient  party  for 
a  contempt  or  by  sequestration,  may  by  order  direct  that  the  act 
required  to  be  done  be  done,  so  far  as  practicable,  by  some  other 
person  appointed  by  the  court  or  judge,  at  the  cost  of  the  disobedi- 
ent party,  and  the  act,  when  so  done,  shall  have  like  effect  as  if 
done  by  him. 

9 

WRIT   OF    ASSISTANCE 

When  any  decree  or  order  is  for  the  delivery  of  possession,  upon 
proof  made  by  affidavit  of  a  demand  and  refusal  to  obey  the  de- 


604  APPENDIX 

cree  or  order,  the  party  prosecuting  the  same  shall  be  entitled  to  a 
writ  of  assistance  from  the  clerk  of  the  court. 

1O 

DECREE  FOR 'DEFICIENCY  IN  FORECLOSURES,  ETC. 

In  suits  for  the  foreclosure  of  mortgages,  or  the  enforcement  of 
other  liens,  a  decree  may  be  rendered  for  any  balance  that  may  be 
found  due  to  the  plaintiff  over  and  above  the  proceeds  of  the  sale  or 
sales,  and  execution  may  issue  for  the  collection  of  the  same,  as  is 
provided  in  rule  8  when  the  decree  is  solely  for  the  payment  of 
money. 

11 

PROCESS  IN  BEHALF  OF  AND  AGAINST  PERSONS  NOT 
PARTIES 

Every  person,  not  being  a  party  in  any  cause,  who  has  obtained 
an  order,  or  in  whose  favor  an  order  shall  have  been  made,  may 
enforce  obedience  to  such  order  by  the  same  process  as  if  he  were 
a  party ;  and  every  person,  not  being  a  party,  against  whom  obedi- 
ence to  any  order  of  the  court  may  be  enforced,  shall  be  liable  to 
the  same  process  for  enforcing  obedience  to  such  orders  as  if  he 
were  a  party. 

12 

ISSUE  OF   SUBPOENA— TIME  FOR  ANSWER 

Whenever  a  bill  is  filed,  and  not  before,  the  clerk  shall  issue  the 
process  of  subpoena  thereon,  as  of  course,  upon  the  application  of 
the  plaintiff,  which  shall  contain  the  names  of  the  parties  and  be 
returnable  into  the  clerk's  office  twenty  days  from  the  issuing  there- 
of. At  the  bottom  of  the  subpoena  shall  be  placed  a  memorandum, 
that  the  defendant  is  required  to  file  his  answer  or  other  defense  in 
the  clerk's  office  on  or  before  the  twentieth  day  after  service,  exclud- 
ing the  day  thereof;  otherwise  the  bill  may  be  taken  pro  confesso. 
Where  there  are  more  than  one  defendant,  a  writ  of  subpoena  may, 
at  the  election  of  the  plaintiff,  be  sued  out  separately  for  each  de- 
fendant, or  a  joint  subpoena  against  all  the  defendants. 

13 

MANNER  OF  SERVING  SUBPOENA 

(See  ante,  p.  434.) 

14 

ALIAS   SUBPOENA 

Whenever  any  subpoena  shall  be  returned  not  executed  as  to  any 
defendant,  the  plaintiff  shall  be  entitled  to  other  subpoenas  against 
such  defendant,  until  due  service  is  made. 


RULES  OF  PRACTICE  FOB  COURTS  OF  EQUITY  OF  U.  8.         605 

15 

PROCESS,  BY  WHOM  SERVED 

The  service  of  all  process,  mesne  and  final,  shall  be  by  the  mar- 
shal of  the  district,  or  his  deputy,  or  by  some  other  person  specially 
appointed  by  the  court  or  judge  for  that  purpose,  and  not  other- 
wise. In  the  latter  case,  the  person  serving  the  process  shall  make 
affidavit  thereof. 

16 

DEFENDANT  TO  ANSWER— DEFAULT— DECREE  PRO  CON- 

FESSO 

It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall  be  en- 
larged, for  cause  shown,  by  a  judge  of  the  court,  to  file  his  answer 
or  other  defense  to  the  bill  in  the  clerk's  office  within  the  time 
named  in  the  subpoena  as  required  by  rule  12.  In  default  thereof 
the  plaintiff  may,  at  his  election,  take  an  order  as  of  course  that 
the  bill  be  taken  pro  confesso ;  and  thereupon  the  cause  shall  be 
proceeded  in  ex  parte. 

17 

DECREE  PRO  CONFESSO  TO  BE  FOLLOWED   BY  FINAL  DE- 
CREE—SETTING  ASIDE  DEFAULT 

(See  ante,  p.  436.) 

18 

PLEADINGS— TECHNICAL  FORMS   ABROGATED 

Unless  otherwise  prescribed  by  statute  or  these  rules  the  techni- 
cal forms  of  pleadings  in  equity  are  abolished. 

19 

AMENDMENTS  GENERALLY 

(See  ante,  p.  442.) 

20 

FURTHER    AND    PARTICULAR    STATEMENT    IN    PLEADING 
MAY  BE  REQUIRED 

A  further  and  better  statement  of  the  nature  of  the  claim  or  de- 
fense, or  further  and  better  particulars  of  any  matter  stated  in  any 
pleading,  may  in  any  case  be  ordered,  upon  such  terms,  as  to  costs 
and  otherwise,  as  may  be  just. 


606  APPENDIX 


21 

SCANDAL  AND   IMPERTINENCE 

The  right  to  except  to  bills,  answers,  and  other  proceedings  for 
scandal  or  impertinence  shall  not  obtain,  but  the  court  may,  upon 
motion  or  its  own  initiative,  order  any  redundant,  impertinent  or 
scandalous  matter  stricken  out,  upon  such  terms  as  the  court  shall 
think  fit 

22 

ACTION  AT  LAW  ERRONEOUSLY  BEGUN  AS  SUIT  IN  EQUITY 
—TRANSFER 

If  at  any  time  it  appear  that  a  suit  commenced  in  equity  should 
have  been  brought  as  an  action  on  the  law  side  of  the  court,  it 
shall  be  forthwith  transferred  to  the  law  side  and  be  there  proceed- 
ed with,  with  only  such  alteration  in  the  pleadings  as  shall  be  es- 
sential. 

23 

MATTERS  ORDINARILY  DETERMINABLE  AT  LAW,  WHEN 

ARISING  IN  SUIT  IN  EQUITY  TO  BE  DISPOSED 

OF  THEREIN 

If  in  a  suit  in  equity  a  matter  ordinarily  determinable  at  law  aris- 
es, such  matters  shall  be  determined  in  that  suit  according  to  the 
principles  applicable,  without  sending  the  case  or  question  to  the  law 
side  of  the  court. 

24 

SIGNATURE    OF    COUNSEL 

Every  bill  or  other  pleading  shall  be  signed  individually  by  one 
or  more  solicitors  of  record,  and  such  signatures  shall  be  considered 
as  a  certificate  by  each  solicitor  that  he  has  read  the  pleading  so 
signed  by  him ;  that  upon  the  instructions  laid  before  him  regard- 
ing the  case  there  is  good  ground  for  the  same ;  that  no  scanda- 
lous matter  is  inserted  in  the  pleading;  and  that  it  is  not  inter- 
posed for  delay. 

25 

BILL  OF  COMPLAINT— CONTENTS 

Hereafter  it  shall  be  sufficient  that  a  bill  in  equity  shall  contain, 
in  addition  to  the  usual  caption: 

First,  the  full  name,  when  known,  of  each  plaintiff  and  defendant, 
and  the  citizenship  and  residence  of  each  party.  If  any  party  be 
under  any  disability  that  fact  shall  be  stated. 


RULES  OF  PRACTICE  FOB  COURTS  OF  EQUITY  OF  U»  8.         607 

Second,  a  short  and  plain  statement  of  the  grounds  upon  which 
the  court's  jurisdiction  depends. 

Third,  a  short  and  simple  statement  of  the  ultimate  facts  upon 
which  the  plaintiff  asks  relief,  omitting  any  mere  statement  of  evi- 
dence. 

Fourth,  if  there  are  persons  other  than  those  named  as  defendants 
who  appear  to  be  proper  parties,  the  bill  should  state  why  they  are 
not  made  parties — as  that  they  are  not  within  the  jurisdiction  of 
the  court,  or  cannot  be  made  parties  without  ousting  the  jurisdic- 
tion. 

Fifth,  a  statement  of  and  prayer  for  any  special  relief  pending  the 
suit  or  on  final  hearing,  which  may  be  stated  and  sought  in  alterna- 
tive forms.  If  special  relief  pending  the  suit  be  desired  the  bill 
should  be  verified  by  the  oath  of  the  plaintiff,  or  someone  having 
knowledge  of  the  facts  upon  which  such  relief  is  asked: 

26 

JOINDER  OF  CAUSES  OF  ACTION 

The  plaintiff  may  join  in  one  bill  as  many  causes  of  action,  cog- 
nizable in  equity,  as  he  may  have  against  the  defendant  But  when 
there  are  more  than  one  plaintiff,  the  causes  of  action  joined  must  be 
joint,  and  if  there  be  more  than  one  defendant  the  liability  must  be 
one  asserted  against  all  of  the  material  defendants,  or  sufficient 
grounds  must  appear  for  uniting  the  causes  of  action  in  order  to 
promote  the  convenient  administration  of  justice.  If  it  appear  that 
any  such  causes  of  action  cannot  be  conveniently  disposed  of  to- 
gether, the  court  may  order  separate  trials. 

27 

STOCKHOLDER'S  BlLJj 
(See  ante,  p.  289.) 

28 
AMENDMENT  OF  BILL  AS  OF  COURSE 

(See  ante,  p.  443.) 

29 

DEFENSES— HOW  PRESENTED 

(See  ante,  p.  439.) 

30 

ANSWER— CONTENTS— COUNTER-CLAIM 

(See  ante,  p.  444.) 


608  APPENDIX 

31 

REPLY— WHEN  REQUIRED— WHEN  CAUSE  AT  ISSUE 

(See  ante,  p.  447.) 

32 

ANSWER   TO    AMENDED   BILL 

In  every  case  where  an  amendment  to  the  bill  shall  be  made  after 
answer  filed,  the  defendant  shall  put  in  a  new  or  supplemental  an- 
swer within  ten  days  after  that  on  which  the  amendment  or  amended 
bill  is  filed,  unless  the  time  is  enlarged  or  it  is  otherwise  ordered  by 
a  judge  of  the  court;  and  upon  a  default,  the  like  proceedings  may 
be  had  as  upon  an  omission  to  put  in  an  answer. 

33 

TESTING  SUFFICIENCY  OF  DEFENSE 

(See  ante,  p.  446.) 

34 

SUPPLEMENTAL  PLEADING 

Upon  application  of  either  party  the  court  or  judge,  may,  upon 
reasonable  notice  and  such  terms  as  are  just,  permit  him  to  file  and 
serve  a  supplemental  pleading,  alleging  material  facts  occurring 
after  his  former  pleading,  or  of  which  he  was  ignorant  when  it  was 
made,  including  the  judgment  or  decree  of  a  competent  court  ren- 
dered after  the  commencement  of  the  suit  determining  the  matters 
in  controversy  or  a  part  thereof. 

35 

BILLS  OF  REVIVOR  AND  SUPPLEMENTAL  BILLS— FORM 

It  shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental 
bill  to  set  forth  any  of  the  statements  in  the  original  suit,  unless  the 
special  circumstances  of  the  case  may  require  it. 

36 

OFFICERS  BEFORE  WHOM  PLEADINGS  VERIFIED 

Every  pleading  which  is  required  to  be  sworn  to  by  statute,  or 
these  rules,  may  be  verified  before  any  justice  or  judge  of  any  court 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  8.         609 

of  the  United  States,  or  of  any  state  or  territory,  or  of  the  Dis- 
trict of  Columbia,  or  any  clerk  of  any  court  of  the  United  States,  or 
of  any  territory,  or  of  the  District  of  Columbia,  or  any  notary  public. 

37 

PARTIES    GENERALLY— INTERVENTION 

Every  action  shall  be  prosecuted  in  the  name  of  the  real  party  In 
interest,  but  an  executor,  administrator,  guardian,  trustee  of  an  ex- 
press trust,  a  party  with  whom  or  In  whose  name  a  contract  has 
been  made  for  the  benefit  of  another,  or  a  party  expressly  author- 
ized by  statute,  may  sue  in  his  own*  name  without  joining  with  him 
the  party  for  whose  benefit  the  action  is  brought.  All  persons  hav- 
ing an  interest  in  the  subject  of  the  action  and  in  obtaining  the  re- 
lief demanded  may  join  as  plaintiffs,  and  any  person  may  be  made 
a  defendant  who  has  or  claims  an  interest  adverse  to  the  plaintiff. 
Any  person  may  at  any  time  be  made  a  party  if  his  presence  is  nec- 
essary or  proper  to  a  complete  determination  of  the  cause.  Per- 
sons having  a  united  interest  must  be  joined  on  the  same  side  as 
plaintiffs  or  defendants,  but  when  any  one  refuses  to  Join,  he  may 
for  such  reason  be  made  a  defendant. 

Anyone  claiming  an  interest  in  the  litigation  may  at  any  time  be 
permitted  to  assert  his  right  by  intervention,  but  the  intervention 
shall  be  in  subordination  to,  and  in  recognition  of,  the  propriety  of 
the  main  proceeding. 

38 

REPRESENTATIVES  OF  CLASS 

When  the  question  is  one  of  common  or  general  interest  to  many 
persons  constituting  a  class  so  numerous  as  to  make  it  impractica- 
ble to  bring  them  all  before  the  court,  one  or  more  may  sue  or  de- 
fend for  the  whole. 

39 

ABSENCE  OF  PERSONS  WHO  WOULD  BE  PROPER  PARTIES 

(See  ante,  p.  257.) 

40 

NOMINAL  PARTIES 

Where  no  account,  payment,  conveyance,  or  other  direct  relief  Is 
sought  against  a  party  to  a  suit,  not  being  an  infant,  the  party, 
upon  service  of  the  subprena  upon  him,  need  not  appear  and  an- 
swer the  bill,  unless  the  plaintiff  specially  requires  him  to  do  so  by 
the  prayer;  but  he  may  appear  and  answer  at  his  option;  and  if  he 
HUGHES  FED. Ps.(2D  ED.)— 39 


610  APPENDIX 

does  not  appear  and  answer  he  shall  be  bound  by  all  the  proceed- 
ings in  the  cause.  If  the  plaintiff  shall  require  him  to  appear  and 
answer  he  shall  be  entitled  to  the  costs  of  all  the  proceedings 
against  him,  unless  the  court  shall  otherwise  direct. 


41 

SUIT  TO  EXECUTE  TRUSTS  OF  WILL— HEIR  AS  PARTY 

In  suits  to  execute  the  trusts  of  a  will,  it  shall  not  be  necessary 
to  make  the  heir  at  law  a  party ;  but  the  plaintiff  shall  be  at  liberty 
to  make  the  heir  at  law  a  party  where  he  desires  to  have  the  will 
established  against  him. 

42 

JOINT  AND  SEVERAL  DEMANDS 

In  all  cases  in  which  the  plaintiff  has  a  joint  and  several  demand 
against  several  persons,  either  as  principals  or  sureties,  it  shall  not 
be  necessary  to  bring  before  the  court  as  parties  to  a  suit  concern- 
ing such  demand  all  the  persons  liable  thereto;  but  the  plaintiff 
may  proceed  against  one  or  more  of  the  persons  severally  liable. 

43 

DEFECT  OF   PARTIES— RESISTING  OBJECTION 

Where  the  defendant  shall  by  his  answer  suggest  that  the  bill  of 
complaint  is  defective  for  want  of  parties,  the  plaintiff  may,  within 
fourteen  days  after  answer  filed,  set  down  the  cause  for  argument 
as  a  motion  upon  that  objection  only;  and  where  the  plaintiff  shall 
not  so  set  down  his  cause,  but  shall  proceed  therewith  to  a  hearing, 
notwithstanding  an  objection  for  want  of  parties  taken  by  the  an- 
swer, he  shall  not  at  the  hearing  of  the  cause,  if  the  defendant's  ob- 
jection shall  then  be  allowed,  be  entitled  as  of  course  to  an  order 
to  amend  his  bill  by  adding  parties;  but  the  court  shall  be  at  lib- 
erty to  dismiss  the  bill,  or  to  allow  an  amendment  on  such  terms 
as  justice  may  require. 

44 

DEFECT  OF  PARTIES— TARDY  OBJECTION 

If  a  defendant  shall,  at  the  hearing  of  a  cause,  object  that  a  suit 
is  defective  for  want  of  parties,  not  having  by  motion  or  answer 
taken  the  objection  and  therein  specified  by  name  or  description  the 
parties  to  whom  the  objection  applies,  the  court  shall  be  at  liberty 
to  make  a  decree  saving  the  rights  of  the  absent  parties. 


EULES  OF  PRACTICE  FOB  COURTS  OF  EQUITY  OF  U.  8.         611 

45 

DEATH  OF  PARTY— REVIVOR 

In  the  event  of  the  death  of  either  party  the  court  may,  In  a  proper 
case,  upon  motion,  order  the  suit  to  be  revived  by  the  substitution 
of  the  proper  parties.  If  the  successors  or  representatives  of  the 
deceased  party  fail  to  make  such  application  within  a  reasonable 
time,  then  any  other  party  may,  on  motion,  apply  for  such  relief, 
and  the  court,  upon  any  such  motion  may  make  the  necessary  or- 
ders for  notice  to  the  parties  to  be  substituted  and  for  the  filing  of 
such  pleadings  or  amendments  as  may  be  necessary. 

46 

TRIAL—TESTIMONY    USUALLY    TAKEN    IN    OPEN    COURT- 
RULINGS  ON  OBJECTIONS  TO  EVIDENCE 

In  all  trials  in  equity  the  testimony  of  witnesses  shall  be  taken 
orally  in  open  court,  except  as  otherwise  provided  by  statute  or 
these  rules.  The  court  shall  pass  upon  the  adniissibility  of  all  evi- 
dence offered  as  in  actions  at  law.  When  evidence  is  offered  and 
excluded,  and  the  party  against  whom  the  ruling  is  made  excepts 
thereto  at  the  time,  the  court  shall  take  and  report  so  much  thereof, 
or  make  such  a  statement  respecting  it,  as  will  clearly  show  the  char- 
acter of  the  evidence,  the  form  in  which  it  was  offered,  the  objection 
made,  the  ruling,  and  the  exception.  If  the  appellate  court  shall  be 
of  opinion  that  the  evidence  should  have  been  admitted,  it  shall  not 
reverse  the  decree  unless  it  be  clearly  of  opinion  that  material  prej- 
udice will  result  from  an  affirmance,  in  which  event  it  shall  direct 
such  further  steps  as  justice  may  require. 

47 

DEPOSITIONS— TO  BE  TAKEN  IN  EXCEPTIONAL  INSTANCES 

The  court,  upon  application  of  either  party,  when  allowed  by  stat- 
ute, or  for  good  and  exceptional  cause  for  departing  from  the  gener- 
al rule,  to  be  shown  by  affidavit,  may  permit  the  deposition  of  named 
witnesses,  to  be  used  before  the  court  or  upon  a  reference  to  a  mas- 
ter, to  be  taken  before  an  examiner  or  other  named  officer,  upon  the 
notice  and  terms  specified  in  the  order.  All  depositions  taken  under 
a  statute,  or  under  any  such  order  of  the  court,  shall  be  taken  and 
filed  as  follows,  unless  otherwise  ordered  by  the  court  or  judge  for 
good  cause  shown:  Those  of  the  plaintiff  within  sixty  days  from 
the  time  the  cause  is  at  issue;  those  of  the  defendant  within  thirty 
days  from  the  expiration  of  the  time  for  the  filing  of  plaintiff's  depo- 
sitions; and  rebutting  depositions  by  either  party  within  twenty 
days  after  the  time  for  taking  original  depositions  expires. 


612  APPENDIX 


48 

TESTIMONY     OF     EXPERT    WITNESSES     IN    PATENT     AND 
TRADE-MARK  CASES 

In  a  case  involving  the  validity  or  scope  of  a  patent  or  trade-mark, 
the  district  court  may,  upon  petition,  order  that  the  testimony  in 
chief  of  expert  witnesses,  whose  testimony  is  directed  to  matters  of 
opinion,  be  set  forth  in  affidavits  and  filed  as  follows:  Those  of  the 
plaintiff  within  forty  days  after  the  cause  is  at  issue;  those  of  the 
defendant  within  twenty  days  after  plaintiff's  time  has  expired; 
and  rebutting  affidavits  within  fifteen  days  after  the  expiration  of 
the  time  for  filing  original  affidavits.  Should  the  opposite  party  de- 
sire the  production  of  any  affiant  for  cross-examination,  the  court  or 
judge  shall,  on  motion,  direct  that  said  cross-examination  and  any 
re-examination  take  place  before  the  court  upon  the  trial,  and  un- 
less the  affiant  is  produced  and  submits  to  cross-examination  in  com- 
pliance with  such  direction,  his  affidavit  shall  not  be  used  as  evi- 
dence in  the  cause. 

49 

EVIDENCE  TAKEN  BEFORE  EXAMINERS,  ETC. 

All  evidence  offered  before  an  examiner  or  like  officer,  together 
with  any  objections,  shall  be  saved  and  returned  into  the  court.  Dep- 
ositions, whether  upon  oral  examination  before  an  examiner  or  like 
officer  or  otherwise,  shall  be  taken  upon  questions  and  answers  re- 
duced to  writing,  or  in  the  form  of  narrative,  and  the  witness  shall 
be  subject  to  cross  and  re-examination. 

50 

STENOGRAPHER— APPOINTMENT— FEES 

When  deemed  necessary  by  the  court  or  officer  taking  testimony, 
a  stenographer  may  be  appointed  who  shall  take  down  testimony 
in  shorthand  and,  if  required,  transcribe  the  same.  His  fee  shall  be 
fixed  by  the  court  and  taxed  ultimately  as  costs.  The  expense  of 
taking  a  deposition,  or  the  cost  of  a  transcript,  shall  be  advanced  by 
the  party  calling  the  witness  or  ordering  the  transcript 

51 

EVIDENCE  TAKEN  BEFORE  EXAMINERS,  ETC. 

Objections  to  the  evidence,  before  an  examiner  or  like  officer,  shall 
be  in  short  form,  stating  the  grounds  of  objection  relied  upon,  hut 
no  transcript  filed  by  such  officer  shall  include  argument  or  debate. 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  8.         613 

The  testimony  of  each  witness,  after  being  reduced  to  writing,  shall 
be  read  over  to  or  by  him,  and  shall  be  signed  by  him  In  the  pres- 
ence of  the  officer;  provided,  that  if  the  witness  shall  refuse  to  sign 
his  deposition  so  taken,  the  officer  shall  sign  the  same,  stating  upon 
the  record  the  reasons,  if  any,  assigned  by  the  witness  for  such  re- 
fusal. Objection  to  any  question  or  questions  shall  be  noted  by  the 
officer  upon  the  deposition,  but  he  shall  not  have  power  to  decide  on 
the  competency  or  materiality  or  relevancy  of  the  questions.  The 
court  shall  have  power,  and  it  shall  be  its  duty,  to  deal  with  the 
costs  of  incompetent  and  immaterial  or  irrelevant  depositions,  or 
parts  of  them,  as  may  be  just. 

52 

ATTENDANCE  OF  WITNESSES  BEFORE  COMMISSIONER,  MAS- 
TER OR  EXAMINER 

Witnesses  who  live  within  the  district,  and  whose  testimony  may 
be  taken  out  of  court  by  these  rules,  may  be  summoned  to  appear 
before  a  commissioner  appointed  to  take  testimony,  or  before  a  mas- 
ter or  examiner  appointed  in  any  cause,  by  subpoena  in  the  usual 
form,  which  may  be  issued  by  the  clerk  in  blank  and  filled  up  by  the 
party  praying  the  same,  or  by  the  commissioner,  master,  or  examin- 
er, requiring  the  attendance  of  the  witnesses  at  the  time  and  place 
specified,  who  shall  be  allowed  for  attendance  the  same  compensa- 
tion as  for  attendance  in  court;  and  if  any  witness  shall  refuse  to 
appear  or  give  evidence  it  shall  be  deemed  a  contempt  of  the  court, 
which  being  certified  to  the  clerk's  office  by  the  commissioner,  mas- 
ter, or  examiner,  an  attachment  may  issue  thereupon  by  order  of  the 
court  or  of  any  judge  thereof,  in  the  same  manner  as  if  the  con- 
tempt were  for  not  attending,  pr  for  refusing  to  give  testimony  in, 
the  court. 

In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to  answer 
any  question  put  by  the  commissioner,  master  or  examiner  or  by 
counsel  or  solicitor,  the  same  practice  shall  be  adopted  as  is  now 
practiced  with  respect  to  witnesses  to  be  produced  on  examination 
before  an  examiner  of  said  court  on  written  interrogatories. 

53 

NOTICE  OF  TAKING  TESTIMONY  BEFORE  EXAMINER,   ETC. 

Notice  shall  be  given  by  the  respective  counsel  or  parties  to  the 
opposite  counsel  or  parties  of  the  time  and  place  of  examination  be- 
fore an  examiner  or  like  officer  for  such  reasonable  time  as  the  court 
or  officer  may  fix  by  order  in  each  case. 

54 

DEPOSITIONS  UNDER  REV.  STAT.  §§  863,  865,  866,  867— CROSS- 
EXAMINATION 

(See  ante,  p.  450.) 


614  APPENDIX 

55 

DEPOSITION  DEEMED  PUBLISHED  WHEN  FILED 

Upon  the  filing  of  any  deposition  or  affidavit  taken  under  these 
rules  or  any  statute,  it  shall  be  deemed  published,  unless  otherwise 
ordered  by  the  court. 

56 

ON  EXPIRATION  OF  TIME  FOR  DEPOSITIONS,  CASE  GOES  ON 
TRIAL  CALENDAR 

After  the  time  has  elapsed  for  taking  and  filing  depositions  under 
these  rules,  the  case  shall  be  placed  on  the  trial  calendar.  There- 
after no  further  testimony  by  deposition  shall  be  taken  except  for 
some  strong  reason  shown  by  affidavit.  In  every  such  application 
the  reason  why  the  testimony  of  the  witness  cannot  be  had  orally 
on  the  trial,  and  why  his  deposition  has  noi;  been  before  taken,  shall 
be  set  forth,  together  with  the  testimony  which  it  is  expected  the 
witness  will  give. 

57 

CONTINUANCES 

After  a  cause  shall  be  placed  on  the  trial  calendar  it  may  be  pass- 
ed over  to  another  day  of  the  same  term,  by  consent  of  counsel  or 
order  of  the  court,  but  shall  not  be  continued  beyond  the  term  save 
in  exceptional  cases  by  order  of  the  court  upon  good  cause  shown 
by  affidavit  and  upon  such  terms  as  the  court  shall  in  its  discretion 
impose.  Continuances  beyond  the  term  by  consent  of  the  parties 
shall  be  allowed  on  condition  only  that  a  stipulation  be  signed  by 
counsel  for  all  the  parties  and  that  all  costs  incurred  theretofore 
be  paid.  Thereupon  an  order  shall  be  entered  dropping  the  case 
from  the  trial  calendar,  subject  to  reinstatement  within  one  year 
upon  application  to  the  court  by  either  party,  in  which  event  it  shall 
be  heard  at  the  earliest  convenient  day.  If  not  so  reinstated  within 
the  year,  the  suit  shall  be  dismissed  without  prejudice  to  a  new  one. 


58 

DISCOVERY  — INTERROGATORIES  — INSPECTION  AND    PRO- 
DUCTION OF  DOCUMENTS— ADMISSION  OF  EX- 
ECUTION  OR  GENUINENESS 

The  plaintiff  at  any  time  after  filing  the  bill  and  not  later  than 
twenty-one  days  after  the  joinder  of  issue,  and  the  defendant  at  any 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  8.         615 

time  after  filing  his  answer  and  not  later  than  twenty-one  days  aft- 
er the  joinder  of  issue,  and  either  party  at  any  time  thereafter  by 
leave  of  the  court  or  judge,  may  file  interrogatories  in  writing  for 
the  discovery  by  the  opposite  party  or  parties  of  facts  and  docu- 
ments material  to  the  support  or  defense  of  the  cause,  with  a  note 
at  the  foot  thereof  stating  which  of  the  interrogatories  each  of  the 
parties  is  required  to  answer.  But  no  party  shall  file  more  than  one 
set  of  interrogatories  to  the  same  party  without  leave  of  the  court 
or  judge. 

If  any  party  to  the  cause  is  a  public  or  private  corporation,  any 
opposite  party  may  apply  to  the  court  or  judge  for  an  order  allowing 
him  to  file  interrogatories  to  be  answered  by  any  officer  of  the  cor- 
poration, and  an  order  may  be  made  accordingly  for  the  examina- 
tion of  such  officer  as  may  appear  to  be  proper  upon  such  interroga- 
tories as  the  court  or  judge  shall  think  fit. 

Copies  shall  be  filed  for  the  use  of  the  interrogated  party  and  shall 
be  sent  by  the  clerk  to  the  respective  solicitors  of  record,  or  to  the 
last  known  address  of  the  opposite  party  if  there  be  no  record  solic- 
itor. 

Interrogatories  shall  be  answered,  and  the  answers  filed  in  the 
clerk's  office,  within  fifteen  days  after  they  have  been  served,  un- 
less the  time  be  enlarged  by  the  court  or  judge.  Each  interrogatory 
shall  be  answered  separately  and  fully  and  the  answers  shall  be  in 
writing,  under  oath,  and  signed  by  the  party  or  corporate  officer 
interrogated.  Within  ten  days  after  the  service  of  interrogatories, 
objections  to  them,  or  any  of  them,  may  be  presented  to  the  court  or 
judge,  with  proof  of  notice  of  the  purpose  so  to  do,  and  answers 
shall  be  deferred  until  the  objections  are  determined,  which  shall  be 
at  as  early  a  time  as  is  practicable.  In  so  far  as  the  objections  are 
sustained,  answers  shall  not  be  required. 

The  court  or  judge,  upon  motion  and  reasonable  notice,  may  make 
all  such  orders  as  may  be  appropriate  to  enforce  answers  to  inter- 
rogatories or  to  effect  the  inspection  or  production  of  documents  in 
the  possession  of  either  party  and  containing  evidence  material  to 
the  cause  of  action  or  defense  of  his  adversary.  Any  party  failing  or 
refusing  to  comply  with  such  an  order  shall  be  liable  to  attachment, 
and  shall  also  be  liable,  if  a  plaintiff,  to  have  his  bill  dismisssed, 
and,  if  a  defendant,  to  have  his  answer  stricken  out  and  be  placed 
in  the  same  situation  as  if  he  had  failed  to  answer. 

By  a  demand  served  ten  days  before  the  trial,  either  party  may 
call  on  the  other  to  admit  in  writing  the  execution  or  genuineness  of 
any  document,  letter  or  other  writing,  saving  all  just  exceptions; 
and  if  such  admission  be  not  made  within  five  days  after  such  serv- 
ice, the  costs  of  proving  the  document,  letter  or  writing  shall  be 
paid  by  the  party  refusing  or  neglecting  to  make  such  admission,  un- 
less at  the  trial  the  court  shall  find  that  the  refusal  or  neglect  was 
reasonable. 


616  APPENDIX 

59 

REFERENCE  TO  MASTER— EXCEPTIONAL,  NOT  USUAL 

Save  in  matters  of  account,  a  reference  to  a  master  shall  be  the 
exception,  not  the  rule,  and  shall  be  made  only  upon  a  showing  that 
some  exceptional  condition  requires  it.  When  such  a  reference  is 
made,  the  party  at  whose  instance  or  for  whose  benefit  it  is  made 
shall  cause  the  order  of  reference  to  be  presented  to  the  master  for 
a  hearing  within  twenty  days  succeeding  the  time  when  the  reference 
was  made,  unless  a  longer  time  be  specially  granted  by  the  court  or 
judge ;  if  he  shall  omit  to  do  so,  the  adverse  party  shall  be  at  liberty 
forthwith  to  cause  proceedings  to  be  had  before  the  master,  at  the 
costs  of  the  party  procuring  the  reference. 

60 

PROCEEDINGS  BEFORE  MASTER 

Upon  every  such  reference,  it  shall  be  the  duty  of  the  master,  as 
soon  as  he  reasonably  can  after  the  same  is  brought  before  him,  to 
assign  a  time  and  place  for  proceedings  in  the  same,  and  to  give  due 
notice  thereof  to  each  of  the  parties,  or  their  solicitors ;  and  if  ei- 
ther party  shall  fail  to  appear  at  the  time  and  place  appointed,  the 
master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  discretion, 
to  adjourn  the  examination  and  proceedings  to  a  future  day,  giving 
notice  to  the  absent  party  or  his  solicitor  of  such  adjournment;  and 
it  shall  be  the  duty  of  the  master  to  proceed  with  all  reasonable 
diligence  in  every  such  reference,  and  with  the  least  practicable  de- 
lay, and  either  party  shall  be  at  liberty  to  apply  to  the  court,  or  a 
judge  thereof,  for  an  order  to  the  master  to  speed  the  proceedings 
and  to  make  his  report,  and  to  certify  to  the  court  or  judge  the 
reason  for  any  delay. 

61 

MASTER'S  REPORT— DOCUMENTS  IDENTIFIED  BUT  NOT  SET 

FORTH 

In  the  reports  made  by  the  master  to  the  court,  no  part  of  any 
state  of  facts,  account,  charge,  affidavit,  deposition,  examination,  or 
answer  brought  in  or  used  before  him  shall  be  stated  or  recited. 
But  such  state  of  facts,  account,  charge,  affidavit,  deposition,  exam- 
ination, or  answer  shall  be  identified,  and  referred  to,  so  as  to  in- 
form the  court  what  state  of  facts,  account,  charge,  affidavit,  depo- 
sition, examination,  or  answer  were  so  brought  in  or  used. 


BULES  OF  PBACTICE  FOB  CODBT8  OF  EQUITY  OF  U.  8.         G17 

62 

POWERS  OF  MASTER 

The  master  shall  regulate  all  the  proceedings  in  every  hearing 
before  him,  upon  every  reference;  and  he  shall  have  full  authority 
to  examine  the  parties  in  the  cause,  upon  oath,  touching  all  matters 
contained  in  the  reference;  and  also  to  require  the  production  of 
all  books,  papers,  writings,  vouchers,  and  other  documents  applica- 
ble thereto;  and  also  to  examine  on  oath,  viva  voce,  all  witnesses 
produced  by  the  parties  before  him,  or  by  deposition,  according  to 
the  acts  of  Congress,  or  otherwise,  as  here  provided;  and  also  to 
direct  the  mode  In  which  the  matters  requiring  evidence  shall  be 
proved  before  him;  and  generally  to  do  all  other  acts,  and  direct  all 
other  inquiries  and  proceedings  in  the  matters  before  him,  which, 
he  may  deem  necessary  and  proper  to  the  justice  and  merits  thereof 
and  the  rights  of  the  parties. 

63 

FORM  OF  ACCOUNTS  BEFORE  MASTER 

All  parties  accounting  before  a  master  shall  bring  in  their  re- 
spective accounts  in  the  form  of  debtor  and  creditor;  and  any  of 
the  other  parties  who  shall  not  be  satisfied  with  the  account  so 
brought  in  shall  be  at  liberty  to  examine  the  accounting  party  viva 
voce,  or  upon  interrogatories^  as  the  master  shall  direct. 

64 

FORMER  DEPOSITIONS,  ETC.,  MAY  BE  USED  BEFORE  MAS- 
TER 

All  affidavits,  depositions  and  documents  which  have  been  previ- 
ously made,  read,  or  used  in  the  court  upon  any  proceeding  in  any 
cause  or  matter  may  be  used  before  the  master. 

65 

CLAIMANTS  BEFORE  MASTER  EXAMINABLE  BY  HIM 

The  master  shall  be  at  liberty  to  examine  any  creditor  or  other 
person  coming  in  to  claim  before  him,  either  upon  written  interrog- 
atories or  viva  voce,  or  in  both  modes,  as  the  nature  of  the  case  may 
appear  to  him  to  require.  The  evidence  upon  such  examinations 
shall  be  taken  down  by  the  master,  or  by  some  other  person  by  his 
order  and  in  his  presence,  if  either  party  requires  it,  in  order  that 
the  same  may  be  used  by  the  court  if  necessary. 


618  APPENDIX 

66 

RETURN  OF  MASTER'S  REPORT— EXCEPTIONS— HEARING 

The  master,  as  soon  as  his  report  is  ready,  shall  return  the  same 
into  the  clerk's  office  and  the  day  of  the  return  shall  be  entered  by 
the  clerk  in  the  Equity  Docket  The  parties  shall  have  twenty  days 
from  the  time  of  the  filing  of  the  report  to  file  exceptions  thereto, 
and  if  no  exceptions  are  within  that  period  filed  by  either  party,  the 
report  shall  stand  confirmed.  If  exceptions  are  filed,  they  shall 
stand  for  hearing  before  the  court,  if  then  in  session,  or,  if  not,  at 
the  next  sitting  held  thereafter,  by  adjournment  or  otherwise. 

67 

COSTS  ON  EXCEPTIONS  TO  MASTER'S  REPORT 

In  order  to  prevent  exceptions  to  reports  from  being  filed  for  frivo- 
lous causes,  or  for  mere  delay,  the  party  whose  exceptions  are  over- 
ruled, shall,  for  every  exception  overruled,  pay  five  dollars  costs  to 
the  other  party,  and  for  every  exception  allowed  shall  be  entitled  to 
the  same  costs. 

68 

APPOINTMENT  AND  COMPENSATION  OF  MASTERS 

The  District  Courts  may  appoint  standing  masters  in  chancery  in 
their  respective  districts  (a  majority  of  all  the  judges  thereof  con- 
curring in  the  appointment),  and  they  may  also  appoint  a  master 
pro  hac  vice  in  any  particular  case.  The  compensation  to  be  allowed 
to  every  master  shall  be  fixed  by  the  District  Court,  in  its  discretion, 
having  regard  to  all  the  circumstances  thereof,  and  the  compensation 
shall  be  charged  upon  and  borne  by  such  of  the  parties  in  the  cause 
as  the  court  shall  direct.  The  master  shall  not  retain  his  report  as 
security  for  his  compensation;  but  when  the  compensation  is  allowed 
by  the  court,  he  shall  be  entitled  to  an  attachment  for  the  amount 
against  the  party  who  is  ordered  to  pay  the  same,  if,  upon  notice 
thereof,  he  does  not  pay  it  within  the  time  prescribed  by  the  court. 

69 

PETITION  FOR  REHEARING 

(See  ante,  p.  463.) 

70 

SUITS  BY  OR  AGAINST  INCOMPETENTS 

Guardians  ad  litem  to  defend  a  suit  may  be  appointed  by  the 
court,  or  by  any  judge  thereof,  for  infants  or  other  persons  who  are 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  8.         619 

under  guardianship,  or  otherwise  incapable  of  suing  for  themselves. 
All  infants  and  other  persons  so  incapable  may  sue  by  their  guard- 
ians, if  any,  or  by  their  prochein  ami ;  subject,  however,  to  such 
orders  as  the  court  or  judge  may  direct  for  the  protection  of  infants 
and  other  persons. 

71 

FORM  OF  DECREE 

In  drawing  up  decrees  and  orders,  neither  the  bill,  nor  answer, 
nor  other  pleadings,  nor  any  part  thereof,  nor  the  report  of  any 
master,  nor  any  other  prior  proceeding,  shall  be  recited  or  stated  in 
the  decree  or  order ;  but  the  decree  and  order  shall  begin,  in  sub- 
stance, as  follows:  "This  cause  came  on  to  be  heard  (or  to  be  fur- 
ther heard,  as  the  case  may  be)  at  this  term,  and  was  argued  by 
counsel;  and  thereupon,  upon  consideration  thereof,  it  was  ordered, 
adjudged  and  decreed  as  follows,  viz.:"  (Here  insert  the  decree  or 
order.) 

72 

CORRECTION  OF  CLERICAL  MISTAKES  IN  ORDERS  AND  DE- 
CREES 

Clerical  mistakes  in  decrees  or  decretal  orders,  or  errors  arising 
from  any  accidental  slip  or  omission,  may,  at  any  time  before  the 
close  of  the  term  at  which  final  decree  is  rendered,  be  corrected  by 
order  of  the  court  or  a  judge  thereof,  upon  petition,  without  the 
form  or  expense  of  a  rehearing. 

73 

PRELIMINARY   INJUNCTIONS   AND  TEMPORARY   RESTRAIN- 
ING ORDERS 

(See  ante,  p.  427.) 

74 

INJUNCTION  PENDING  APPEAL 

When  an  appeal  from  a  final  decree,  in  an  equity  suit,  granting 
or  dissolving  an  injunction,  is  allowed  by  a  justice  or  a  judge  who 
took  part  in  the  decision  of  the  cause,  he  may,  in  his  discretion,  at 
the  time  of  such  allowance,  make  an  order  suspending,  modifying  or 
restoring  the  injunction  during  the  pendency  of  the  appeal,  upon 
such  terms,  as  to  bond  or  otherwise,  as  he  may  consider  proper  for 
the  security  of  the  rights  of  the  opposite  party. 

75 

RECORD  ON  APPEAL— REDUCTION  AND  PREPARATION 

In  case  of  appeal: 

(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor  to  file  with 
the  clerk  of  the  court  from  which  the  appeal  is  prosecuted,  together 


G20  APPENDIX 

with  proof  or  acknowledgment  of  service  of  a  copy  on  the  appellee 
or  his  solicitor,  a  prsecipe  which  shall  indicate  the  portions  of  the 
record  to  be  incorporated  into  the  transcript  on  such  appeal.  Should 
the  appellee  or  his  solicitor  desire  additional  portions  of  the  record 
incorporated  into  the  transcript,  he  shall  file  with  the  clerk  of  the 
court  his  prsecipe  also  within  ten  days  thereafter,  unless  the  time 
shall  be  enlarged  by  the  court  or  a  judge  thereof,  indicating  such 
additional  portions  of  the  record  desired  by  him. 

(b)  The  evidence  to  be  included  in  the  record  shall  not  be  set 
forth  in  full,  but  shall  be  stated  in  simple  and  condensed  form,  all 
parts  not  essential  to  the  decision  of  the  questions  presented  by  the 
appeal  being  omitted  and  the  testimony  of  witnesses  being  stated 
only  in  narrative  form,  save  that  if  either  party  desires  it,  and  the 
court  or  judge  so  directs,  any  part  of  the  testimony  shall  be  repro- 
duced in  the  exact  words  of  the  witness.    The  duty  of  so  condensing 
and  stating  the  evidence  shall  rest  primarily  on  the  appellant,  who 
shall  prepare  his  statement  thereof  and  lodge  the  same  in  the  clerk's 
office  for  the  examination  of  the  other  parties  at  or  before  the  time 
of  filing  his  prsecipe  under  paragraph  (a)  of  this  rule.    He  shall  also 
notify  the  other  parties  or  their  solicitors  of  such  lodgment  and  shall 
name  a  time  and  place  when  he  will  ask  the  court  or  judge  fo  ap- 
prove the  statement,  the  time  so  named  to  be  at  least  ten  days  after 
such  notice.     At  the  expiration  of  the  time  named  or  such  further 
time  as  the  court  or  judge  may  allow,  the  statement,  together  with 
any  objections  made  or  amendments  proposed  by  any  party,  shall  be 
presented  to  the  court  or  the  judge,  and  if  the  statement  be  true, 
complete  and  properly  prepared,  it  shall  be  approved  by  the  court  or 
judge,  and  if  it  be  not  true,  complete  or  properly  prepared,  it  shall 
be  made  so  under  the  direction  of  the  court  or  judge  and  shall  then 
be  approved.    When  approved,  it  shall  be  filed  in  the  clerk's  office  and 
become  a  part  of  the  record  for  the  purposes  of  the  appeal. 

(c)  If  any  difference  arise  between  the  parties  concerning  direc- 
tions as  to  the  general  contents  of  the  record  to  be  prepared  on  the 
appeal,  such  difference  shall  be  submitted  to  the  court  or  judge  in 
conformity  with  the  provisions  of  paragraph  (b)  of  this  rule  and 
shall  be  covered  by  the  directions  which  the  court  or  judge  may  give 
on  the  subject. 

76 

RECORD    ON    APPEAL — REDUCTION    AND    PREPARATION- 
COSTS— CORRECTION  OF  OMISSIONS 

In  preparing  the  transcript  on  an  appeal,  especial  care  shall  be 
taken  to  avoid  the  inclusion  of  more  than  one  copy  of  the  same 
paper  and  to  exclude  the  formal  and  immaterial  parts  of  all  ex- 
hibits, documents  and  other  papers  included  therein;  and  for  any  in- 
fraction of  this  or  any  kindred  rule  the  appellate  court  may  with- 
hold or  impose  costs  as  the  circumstances  of  the  case  and  the  dis- 


EULES  OF  PRACTICE  FOE  COURTS  OF  EQUITY  OF  U.  8.         621 

couragement  of  like  Infractions  In  the  future  may  require.  Costs 
for  such  an  infraction  may  be  imposed  upon  offending  solicitors  as 
well  as  parties. 

If,  in  the  transcript,  anything  material  to  either  party  be  omitted 
by  accident  or  error,  the  appellate  court,  on  a  proper  suggestion  or 
its  own  motion,  may  direct  that  the  omission  be  corrected  by  a  sup- 
plemental transcript. 

77 

RECORD   ON   APPEALS-AGREED    STATEMENT 

When  the  questions  presented  by  an  appeal  can  be  determined  by 
the  appellate  court  without  an  examination  of  all  the  pleadings  and 
evidence,  the  parties,  with  the  approval  of  the  District  Court  or  the 
•mi<r0  ^preof.  may  prepare  and  sign  a  statement  of  the  case  showing 
how  the  questions  arose  and  were  decided  in  the  District  Court  and 
setting  forth  so  much  only  of  the  fads  alleged  and  proved,  or  sought 
to  be  proved,  as  is  essential  to  a  decision  of  such  questions  by  the 
appellate  court.  Such  statement,  when  filed  in  the  office  of  the  clerk 
of  the  District  Court,  shall  be  treated  as  superseding,  for  the  pur- 
poses of  the  appeal,  all  parts  of  the  record  other  than  the  decree 
from  which  the  appeal  is  taken,  and,  together  with  such  decree,  shall 
be  copied  and  certified  to  the  appellate  court  as  the  record  on  ap- 
peal. 

78 

AFFIRMATION  IN  LIEU  OF  OATH 

Whenever  under  these  rules  an  oath  is  or  may  be  required  to  be 
taken,  the  party  may,  If  conscientiously  scrupulous  of  taking  an 
oath,  in  lieu  thereof  make  solemn  affirmation  to  the  truth  of  the 
facts  stated  by  him. 

79 

ADDITIONAL  RULES  BY  DISTRICT  COURT 

With  the  concurrence  of  a  majority  of  the  Circuit  Judges  for  the 
circuit,  the  District  Courts  may  make  any  other  and  further  rules 
and  regulations  for  the  practice,  proceedings  and  process,  mesne  and 
final,  in  their  respective  districts,  not  inconsistent  with  the  rules 
hereby  prescribed,  and  from  time  to  time  alter  and  amend  the  same. 

80 

COMPUTATION  OF  TIME— SUNDAYS  AND  HOLIDAYS 

When  the  time  prescribed  by  these  rules  for  doing  any  act  expires 
on  a  Sunday  or  legal  holiday,  such  time  shall  extend  to  and  inci"H/x 
the  next  succeeding  day  that  is  not  a  Sunday  or  legal  holiday. 


622    >  APPENDIX 


81 

THESE  RULES  EFFECTIVE  FEBRUARY  1,  1913— OLD  RULES 

ABROGATED 

These  rules  shall  be  in  force  on  and  after  February  1,  1913,  and 
shall  govern  all  proceedings  in  cases  then  pending  or  thereafter 
brought,  save  that  where  in  any  then  pending  cause  an  order  has 
been  made  or  act  done  which  cannot  be  changed  without  doing  sub- 
stantial injustice,  the  court  may  give  effect  to  such  order  or  act  to 
the  extent  necessary  to  avoid  any  such  injustice. 

All  rules  theretofore  prescribed  by  the  Supreme  Court,  regulating 
the  practice  in  suits  in  equity,  shall  be  abrogated  when  these  rules 
take  effect 


THE  JUDICIAL  CODE 


ACT  MARCH  3,   1911,  c.  231.      [S.  7031.] 

An  Act  to  Codify,  Revise,  and  Amend  the  Laws  Relating  to  the 
Judiciary.  (36  Stat  1087.) 

Be  it  enacted,  &c.,  That  the  laws  relating  to  the  judiciary  be,  and 
they  hereby  are,  codified,  revised,  and  amended,  with  title,  chapters, 
head-notes,  and  sections,  entitled,  numbered,  and  to  read  as  follows: 

TITLE 
THE  JUDICIARY 


CHAPTER  ONE 
DISTRICT  COURTS— ORGANIZATION 


Sec. 

1.  District   courts  established;    ap- 

pointment    and     residence     of 
judges. 

2.  Salaries  of  district  judges. 

3.  Clerks. 

4.  Deputy  clerks. 

5.  Criers  and  bailiffs. 

6.  Records;    where  kept. 

7.  Effect  of  altering  terms. 

8.  Trials  not  discontinued   by  new 

term. 

9.  Court  always  open  as  courts  of 

admiralty  and  equity. 

10.  Monthly   adjournments   for  trial 

of  criminal  causes. 

11.  Special  terms. 

12.  Adjournment  in   case   of  nonat- 

tendance  of  judge. 

13.  Designation  of  another  judge  in 

case  of  disability  of  judge. 


Sec. 

14.  Designation  of  another  judge  in 

case    of    an    accumulation    of 
business. 

15.  When  designation  to  be  made  by 

Chief  Justice. 

16.  New    appointment    and    revoca- 

tion. 

17.  Designation  of  district  judge  in 

aid  of  another  judge. 

18.  When  circuit  judge  may  be  des- 

ignated  to  hold   district   court. 

19.  Duty  of  district  and  circuit  judge 

in  such  cases. 

20.  When  district  judge  is  interested 

or  related  to  parties. 

21.  When  affidavit  of  personal  bias 

or  prejudice  of  judge  is  filed. 

22.  Continuance  in  case  of  vacancy 

in  office. 

23.  Districts  having  more  than   one 

judge;    division  of  business. 


District    court*    established;     appointment    and    residence    of 
judges 

Sec.  1.  In  each  of  the  districts  described  in  chapter  five,  there 
shall  be  a  court  called  a  district  court,  for  which  there  shall  be  ap- 
pointed one  judge,  to  be  called  a  district  judge;  except  that  in  the 
northern  district  of  California,  the  northern  district  of  Illinois,  the 
district  of  Maryland,  the  district  of  Minnesota,  the  district  of  Ne- 
braska, the  district  of  New  Jersey,  the  eastern  district  of  New 
HUGHES  FED.PB.(2o  ED.)  (623) 


624  APPENDIX 

York,  the  northern  and  southern  districts  of  Ohio,  the  district  of 
Oregon,  the  eastern  and  western  districts  of  Pennsylvania,  and  the 
western  district  of  Washington,  there  shall  be  a*n  additional  district 
judge  in  each,  and  in  the  southern  district  of  New  York,  three  addi- 
tional district  judges:  Provided,  That  whenever  a  vacancy  shall 
occur  in  the  office  of  the  district  judge  for  the  district  of  Maryland, 
senior  in  commission,  such  vacancy  shall  not  be  filled,  and  there- 
after there  shall  be  but  one  district  judge  in  said  district:  Provided 
further,  That  there  shall  be  one  judge  for  the  eastern  and  western 
districts  of  South  Carolina,  one  judge  for  the  eastern  and  middle 
districts  of  Tennessee,  and  one  judge  for  the  northern  and  southern 
districts  of  Mississippi:  Provided  further,  That  the  district  judge 
for  the  middle  district  of  Alabama  shall  continue  as  heretofore  to  be 
a  district  judge  for  the  northern  district  thereof.  Every  district 
judge  shall  reside  in  the  district  or  one  of  the  districts  for  which  he 
is  appointed,  and  for  offending  against  this  provision  shall  be  deem- 
ed guilty  of  a  high  misdemeanor. 

Salaries  of  district  judges 

Sec.  2.  Each  of  the  district  judges  shall  receive  a  salary  of  six 
thousand  dollars  a  year,  to  be  paid  in  monthly  installments. 

Clerks 

Sec.  3.  A  clerk  shall  be  appointed  for  each  district  court  by  the 
judge  thereof,  except  in  cases  otherwise  provided  for  by  law. 

Deputy  clerks 

Sec.  4.  Except  as  otherwise  specially  provided  by  law,  the  clerk 
of  the  district  court  for  each  district  may,  with  the  approval  of  the 
district  judge  thereof,  appoint  such  number  of  deputy  clerks  as  may 
be  deemed  necessary  by  such  judge,  who  may  be  designated  to  reside 
and  maintain  offices  at  such  places  of  holding  court  as  the  judge 
may  determine.  Such  deputies  may  be  removed  at  the  pleasure  of 
the  clerk  appointing  them,  with  the  concurrence  of  the  district  judge. 
In  case  of  the  death  of  the  clerk,  his  deputy  or  deputies  shall,  unless 
removed,  continue  in  office  and  perform  the  duties  of  the  clerk,  in 
his  name,  until  a  clerk  is  appointed  and  qualified;  and  for  the  de- 
fault or  misfeasances  in  office  of  any  such  deputy,  whether  in  the 
lifetime  of  the  clerk  or  after  his  death,  the  clerk  and  his  estate 
and  the  sureties  on  his  official  bond  shall  be  liable ;  and  his  executor 
or  administrator  shall  have  such  remedy  for  any  such  default  or 
misfeasances  committed  after  his  death  as  the  clerk  would  be  en- 
titled to  if  the  same  had  occurred  in  his  lifetime. 

Criers  and  bailiffs 

Sec.  5.  The  district  court  for  each  district  may  appoint  a  crier 
for  the  court;  and  the  marshal  may  appoint  such  number  of  per- 
sons, not  exceeding  five,  as  the  judge  may  determine,  to  wait  upon 
the  grand  and  other  juries,  and  for  other  necessary  purposes. 


THE    JUDICIAL    CODE  625 

Records;    where  kept 

Sec.  6.  The  records  of  a  district  court  shall  be  kept  at  the  place 
where  the  court  is  held.  When  it  is  held  at  more  than  one  place  in 
any  district  and  the  place  of  keeping  the  records  is  not  specially  pro- 
vided by  law,  they  shall  be  kept  at  either  of  the  places  of  holding 
the  court  which  may  be  designated  by  the  district  judge. 

Effect  of  altering  terms 

Sec.  7.  No  action,  suit,  proceeding,  or  process  in  any  district 
court  shall  abate  or  be  rendered  invalid  by  reason  of  any  act  chang- 
ing the  time  of  holding  such  court,  but  the  same  shall  be  deemed  to 
be  returnable  to,  pending,  and  triable  in  the  terms  established  next 
after  the  return  day  thereof. 

Trials  not  discontinued  by  new  term 

Sec.  8.  When  the  trial  or  hearing  of  any  cause,  civil  or  criminal, 
in  a  district  court  has  been  commenced  and  is  in  progress  before  a 
jury  or  the  court,  it  shall  not  be  stayed  or  discontinued  by  the  ar- 
rival of  the  time  fixed  by  law  for  another  session  of  said  court; 
but  the  court  may  proceed  therein  and  bring  it  to  a  conclusion  in 
the  same  manner  and  with  the  same  effect  as  if  another  stated 
term  of  the  court  had  not  intervened. 

Courts  always   open  as  conrts  of  admiralty  and  equity 

Sec.  9.  The  district  courts,  as  courts  of  admiralty  and  as  courts 
of  equity,  shall  be  deemed  always  open  for  the  purpose  of  filing  any 
pleading,  of  issuing  and  returning  mesne  and  final  process,  and  of 
making  and  directing  all  interlocutory  motions,  orders,  rules,  and 
other  proceedings  preparatory  to  the  hearing,  upon  their  merits,  of 
all  causes  pending  therein.  Any  district  judge  may,  upon  reasonable 
notice  to  the  parties,  make,  direct,  and  award,  at  chambers  or  in  the 
clerk's  office,  and  in  vacation  as  well  as  in  term,  all  such  process, 
commissions,  orders,  rules,  and  other  proceedings,  whenever  the 
same  are  not  grantable  of  course,  according  to  the  rules  and  practice 
of  the  court. 

Monthly  adjournments  for  trial  of  criminal  causes 

Sec.  10.  District  courts  shall  hold  monthly  adjournments  of  their 
regular  terms,  for  the  trial  of  criminal  causes,  when  their  business 
requires  it  to  be  done,  in  order  to  prevent  undue  expenses  and  de- 
lays in  such  cases. 

Special  terms 

Sec.  11.  A  special  term  of  any  district  court  may  be  held  at  the 
same  place  where  any  regular  term  is  held,  or  at  such  other  place 
in  the  district  as  the  nature  of  the  business  may  require,  and  at  such 
time  and  upon  such  notice  as  may  be  ordered  by  the  district  judge. 
Any  business  may  be  transacted  at  such  special  term  which  might 
be  transacted  at  a  regular  term. 
HUGHES  FED.PB.(2o  ED.) — 40 


626  APPENDIX 

Adjournment  in  case  of  nonattendance  of  judge 

Sec.  12.  If  the  judge  of  any  district  court  is  unable  to  attend  at 
the  commencement  of  any  regular,  adjourned,  or  special  term,  or 
any  time  during  such  term,  the  court  may  be  adjourned  by  the  mar- 
shal, or  clerk,  by  virtue  of  a  written  order  directed  to  him  by  the 
judge,  to  the  next  regular  term,  or  to  any  earlier  day,  as  the  order 
may  direct. 

Designation  of  another  judge  in  case  of  disability  of  judge 

Sec.  13.  When  any  district  judge  is  prevented,  by  any  disability, 
from  holding  any  stated  or  appointed  term  of  his  district  court,  and 
that  fact  is  made  to  appear  by  the  certificate  of  the  clerk,  under 
the  seal  of  the  court,  to  any  circuit  judge  of  the  circuit  in  which  the 
district  lies,  or,  in  the  absence  of  all  the  circuit  judges,  to  the  circuit 
justice  of  the  circuit  in  which  the  district  lies,  any  such  circuit  judge 
or  justice  may,  if  in  his  judgment  the  public  interests  so  require, 
designate  and  appoint  the  judge  of  any  other  district  in  the  same 
circuit  to  hold  said  court,  and  to  discharge  all  the  judicial  duties  of 
the  judge  so  disabled,  during  such  disability.  Whenever  it  shall  be 
certified  by  any  such  circuit  judge  or,  in  his  absence,  by  the  circuit 
justice  of  the  circuit  in  which  the  district  lies,  that  for  any  sufficient 
reason  it  is  impracticable  to  designate  and  appoint  a  judge  of  an- 
other district  within  the  circuit  to  perform  the  duties  of  such  dis- 
abled judge,  the  chief  justice  may,  if  in  his  judgment  the  public  in- 
terests so  require,  designate  and  appoint  the  judge  of  any  district 
in  another  circuit  to  hold  said  court  and  to  discharge  all  the  judicial 
duties  of  the  judge  so  disabled,  during  such  disability.  Such  ap- 
pointment shall  be  filed  in  the  clerk's  office,  and  entered  on  the  min- 
utes of  the  said  district  court,  and  a  certified  copy  thereof,  under 
the  seal  of  the  court,  shall  be  transmitted  by  the  clerk  to  the  judge 
so  designated  and  appointed. 

Designation  of  another  judge  in  case  of  an  accumulation  of 
business 

Sec.  14.  When,  from  the  accumulation  or  urgency  of  business  in 
any  district  court,  the  public  interests  require  the  designation  and 
appointment  hereinafter  provided,  and  the  fact  is  made  to  appear, 
by  the  certificate  of  the  clerk,  under  the  seal  of  the  court,  to  any 
circuit  judge  of  the  circuit  in  which  the  district  lies,  or,  in  the  ab- 
sence of  all  the  circuit  judges,  to  the  circuit  justice  of  the  circuit 
in  which  the  district  lies,  such  circuit  judge  or  justice  may  desig- 
nate and  appoint  the  judge  of  any  other  district  in  the  same  circuit 
to  have  and  exercise  within  the  district  first  named  the  same  pow- 
ers that  are  vested  in  the  judge  thereof.  Each  of  the  said  district 
judges  may,  in  case  of  such  appointment,  hold  separately  at  the 
same  time  a  district  court  in  such  district,  and  discharge  all  the 
judicial  duties  of  the  district  judge  therein. 


THE    JUDICIAL    CODE  627 

When  designation  to  be  made  by  Chief  Justice 

Sec.  15.  If  all  the  circuit  judges  and  the  circuit  justice  are  ab- 
sent from  the  circuit,  or  are  unable  to  execute  the  provisions  of  ei- 
ther of  the  two  preceding  sections,  or  if  the  district  judge  so  desig- 
nated is  disabled  or  neglects  to  hold  the  court  and  transact  the 
business  for  which  he  is  designated,  the  clerk  of  the  district  court 
shall  certify  the  fact  to  the  Chief  Justice  of  the  United  States,  who 
may  thereupon  designate  and  appoint  in  the  manner  aforesaid  the 
judge  of  any  district  within  such  circuit  or  within  any  other  circuit ; 
and  said  appointment  shall  be  transmitted  to  the  clerk  and  be  acted 
upon  by  him  as  directed  in  the  preceding  section. 

New  appointment  and  revocation 

Sec.  16.  Any  such  circuit  judge,  or  circuit  justice,  or  the  Chief 
Justice,  as  the  case  may  be,  may,  from  time  to  time,  if  in  his  judg- 
ment the  public  interests  so  require,  make  a  new  designation  and 
appointment  of  any  other  district  judge,  in  the  manner,  for  the  du- 
ties, and  with  the  powers  mentioned  in  the  three  preceding  sections, 
and  revoke  any  previous  designation  and  appointment. 

Designation  of  district  judge  in  aid  of  another  judge 

Sec.  17.  It  shall  be  the  duty  of  the  senior  circuit  judge  then 
present  in  the  circuit,  whenever  in  his  judgment  the  public  interest 
so  requires,  to  designate  and  appoint,  in  the  manner  and  with  the 
powers  provided  in  section  fourteen,  the  district  judge  of  any  judi- 
cial district  within  his  circuit  to  hold  a  district  court  in  the  place 
or  in  aid  of  any  other  district  judge  within  the  same  circuit. 

"When  circuit  judge  may  be  designated  to  hold  district  court 

Sec.  18.  Whenever,  in  the  judgment  of  the  senior  circuit  judge 
of  the  circuit  in  which  the  district  lies,  or  of  the  circuit  justice  as- 
signed to  such  circuit,  or  of  the  Chief  Justice,  the  public  interest 
shall  require,  the  said  judge,  or  associate  justice,  or  Chief  Justice, 
shall  designate  and  appoint  any  circuit  judge  of  the  circuit  to  hold 
said  district  court. 

Duty  of  district  and  circuit  judge  in  such  cases 

Sec.  19.  It  shall  be  the  duty  of  the  district  or  circuit  judge  who 
is  designated  and  appointed  under  either  of  the  six  preceding  sec- 
tions, to  discharge  all  the  judicial  duties  for  which  he  is  so  appoint- 
ed, during  the  time  for  which  he  is  so  appointed ;  and  all  the  acts 
and  proceedings  in  the  courts  held  by  him,  or  by  or  before  him,  in 
pursuance  of  said  provisions,  shall  have  the  same  effect  and  validity 
as  if  done  by  or  before  the  district  judge  of  the  said  district 

When  district  judge  is  interested  or  related  to  parties 

Sec.  20.  Whenever  it  appears  that  the  judge  of  any  district  court 
is  in  any  way  concerned  in  interest  in  any  suit  pending  therein,  or 
has  been  of  counsel  or  is  a  material  witness  for  either  party,  or  is  so 


628  APPENDIX 

related  to  or  connected  with  either  party  as  to  render  it  improper, 
in  his  opinion,  for  him  to  sit  on  the  trial,  it  shall  be  his  duty,  on 
application  by  either  party,  to  cause  the  fact  to  be  entered  on  the 
records  of  the  court;  and  also  an  order  that  an  authenticated  copy 
thereof  shall  be  forthwith  certified  to  the  senior  circuit  judge  for 
said  circuit  then  present  in  the  circuit;  and  thereupon  such  proceed- 
ings shall  be  had  as  are  provided  in  section  fourteen. 

"When  affidavit  of  personal  bias  or  prejudice  of  judge  is  filed 

Sec.  21.  Whenever  a  party  to  any  action  or  proceeding,  civil  or 
criminal,  shall  make  and  file  an  affidavit  that  the  judge  before  whom 
the  action  or  proceeding  is  to  be  tried  or  heard  has  a  personal  bias 
or  prejudice  either  against  him  or  in  favor  of  any  opposite  party  to 
the  suit,  such  judge  shall  proceed  no  further  therein,  but  another 
judge  shall  be  designated  in  the  manner  prescribed  in  the  section 
last  preceding,  or  chosen  in  the  manner  prescribed  in  section  twen- 
ty-three, to  hear  such  matter.  Every  such  affidavit  shall  state  the 
facts  and  the  reasons  for  the  belief  that  such  bias  or  prejudice  ex- 
ists, and  shall  be  filed  not  less  than  ten  days  before  the  beginning 
of  the  term  of  the  court,  or  good  cause  shall  be  shown  for  the  fail- 
ure to  file  it  within  such  time.  No  party  shall  be  entitled  in  any 
case  to  file  more  than  one  such  affidavit ;  and  no  such  affidavit  shall 
be  filed  unless  accompanied  by  a  certificate  of  counsel  of  record  that 
such  affidavit  and  application  are  made  in  good  faith.  The  same 
proceedings  shall  be  had  when  the  presiding  judge  shall  file  with 
the  clerk  of  the  court  a  certificate  that  he  deems  himself  unable  for 
any  reason  to  preside  with  absolute  impartiality  in  the  pending  suit 
or  action. 

Continuance  in  case  of  vacancy  in  office 

Sec.  22.  When  the  office  of  judge  of  any  district  court  becomes 
vacant,  all  process,  pleadings,  and  proceedings  pending  before  such 
court  shall,  if  necessary,  be  continued  by  the  clerk  thereof  until 
such  times  as  a  judge  shall  be  appointed,  or  designated  to  hold  such 
court;  and  the  judge  so  designated,  while  holding  such  court,  shall 
possess  the  powers  conferred  by,  and  be  subject  to  the  provisions 
contained  in,  section  nineteen. 

Districts  having   more   than   one   judge;    division   of   business 

Sec.  23.  In  districts  having  more  than  one  district  judge,  the 
judges  may  agree  upon  the  division  of  business  and  assignment  of 
cases  for  trial  in  said  district;  but  in  case  they  do  not  so  agree, 
the  senior  circuit  judge  of  the  circuit  in  which  the  district  lies,  shall 
make  all  necessary  orders  for  the  division  of  business  and  the  as- 
signment of  cases  for  trial  in  said  district 


THE    JUDICIAL    CODE 


G29 


CHAPTER  TWO 
DISTRICT  COURTS— JURISDICTION 


Sec. 

24.  Original  Jurisdiction. 

Par.    1.  Where       the       United 

States  are  plaintiffs; 

and  of  civil  suits  at 

common    law    or   In 

equity. 

2.  Of  crimes  and  offenses. 

3.  Of    admiralty    causes, 

seizures,  and  prizes. 

4.  Of  suits  under  any  law 

relating  to  the  slave 
trade. 

5.  Of     cases     under     in- 

ternal revenue,  cus- 
toms, and  tonnage 
laws. 

6.  Of  suits  under  postal 

laws. 

7.  Of  suits  under  the  pat- 

ent, the  copyright, 
and  the  trade -mark 
laws. 

8.  Of   suits   for  violation 

of  interstate  com- 
merce laws. 

9.  Of  penalties  and   for- 

feitures. 

10.  Of  suits  on  debentures. 

11.  Of    suits    for    injuries 

on  account  of  acts 
done  under  laws  of 
the  United  States. 

12.  Of     suits     concerning 

civil  rights. 

13.  Of   suits   against   per- 

sons having  knowl- 
edge of  conspiracy, 
etc. 


Sec. 

Par.  14.  Of  suits  to  redress 
the  deprivation,  un- 
der color  of  law,  of 
civil  rights. 

15.  Of  suits  to  recover  cer- 

tain offices. 

16.  Of    suits    against    na- 

tional-banking asso- 
ciations. 

17.  Of  suits  by  aliens  for 

torts. 

18.  Of   suits   against  con- 

suls   and    vice    con- 
suls. 

19.  Of  suits  and  proceed- 

ings in   bankruptcy. 

20.  Of    suits    against    the 

United  States. 

21.  Of    suits    for    the   un- 

lawful   inclosure    of 
public  lands. 

22.  Of  suits   under  immi- 

gration     and     con- 
tract-labor laws. 

23.  Of  suits  against  trusts, 

monopolies,  and  un- 
lawful combinations. 

24.  Of      suits      concerning 

allotments  of  land  to 
Indians. 

25.  Of       partition       suits 

where  United  States 
is  joint  tenant. 

25.  Appellate  jurisdiction  under  Chi- 

nese-exclusion laws. 

26.  Appellate  jurisdiction   over  Yel- 

lowstone National   Park. 

27.  Jurisdiction  of  crimes  on  Indian 

reservations  In  South  Dakota. 


Original  jurisdiction 

Sec.  24.    The  district  courts  shall  have  original  jurisdiction  as  fol- 
lows: 


Where  the  United  States  are  plaintiffs;    and  of  civil  suits  at 
common  law  or  in  equity 

First     [See  ante,  p.  219.] 

Of  crimes  and  offenses 

Second.    Of  all  crimes  and  offenses  cognizable  under  the  author- 
ity of  the  United  States. 


630  APPENDIX 

Of  admiralty  causes,  seizures,  and  prizes 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  Jurisdiction, 
saving  to  suitors  in  all  cases  the  right  of  a  common-law  remedy 
where  the  common  law  is  competent  to  give  it;  of  all  seizures  on 
land  or  waters  not  within  admiralty  and  maritime  jurisdiction;  of 
all  prizes  brought  into  the  United  States;  and  of  all  proceedings  for 
the  condemnation  of  property  taken  as  prize. 

Of  suits  under  any  law  relating  to  the  slave  trade 

Fourth.  Of  all  suits  arising  under  any  law  relating  to  the  slave 
trade. 

Of  cases  under  internal  revenue,  customs,  and  tonnage  laws 
Fifth.  Of  all  cases  arising  under  any  law  providing  for  internal 
revenue,  or  from  revenue  from  imports  or  tonnage,  except  those  cases 
arising  under  any  law  providing  revenue  from  imports,  jurisdiction 
of  which  has  been  conferred  upon  the  Court  of  Customs  Appeals. 

Of  suits  under  postal  laws 
Sixth.     Of  all  cases  arising  under  the  postal  laws. 

Of  suits  under  the  patent,  the  copyright,  and  the  trade-mark 
laws 

Seventh.  Of  all  suits  at  law  or  in  equity  arising  under  the  pat- 
ent, the  copyright,  and  the  trade-mark  laws. 

Of  suits  for  violation  of  interstate  commerce  laws 

Eighth.  Of  all  suits  and  proceedings  arising  under  any  law  regu- 
lating commerce,  except  those  suits  and  proceedings  exclusive  juris- 
diction of  which  has  been  conferred  upon  the  Commerce  Court. 

Of  penalties  and  forfeitures 

Ninth.  Of  all  suits  and  proceedings  for  the  enforcement  of  pen- 
alties and  forfeitures  incurred  under  any  law  of  the  United  States. 

Of  suits  on  debentures 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  drawback 
of  duties,  issued  under  any  law  for  the  collection  of  duties,  against 
the  person  to  whom  such  debenture  was  originally  granted,  or  against 
any  indorser  thereof,  to  recover  the  amount  of  such  debenture. 

Of  suits  for  injuries  on  account  of  acts  done  under  laws  of  the 
United  States 

Eleventh.  Of  all  suits  brought  by  any  person  to  recover  damages 
for  any  injury  to  his  person  or  property  on  account  of  any  act  done 
fcy  him,  under  any  law  of  the  United  States,  for  the  protection  or 
collection  of  any  of  the  revenues  thereof,  or  to  enforce  the  right  of 
citizens  of  the  United  States  to  vote  in  the  several  States. 

Of  suits  concerning  civil  rights 

Twelfth.  Of  all  suits  authorized  by  law  to  be  brought  by  any 
person  for  the  recovery  of  damages  on  account  of  any  injury  to  his 


THE    JUDICIAL    CODE  631 

person  or  property,  or  of  the  deprivation  of  any  right  or  privilege  of 
a  citizen  of  the  United  States,  by  any  act  done  in  furtherance  of  any 
conspiracy  mentioned  in  section  nineteen  hundred  and  eighty,  Revis- 
ed Statutes. 

Of  suits  against  persons  having  knowledge  of  conspiracy,  etc. 

Thirteenth.  Of  all  suits  authorized  by  law  to  be  brought  against 
any  person  who,  having  knowledge  that  any  of  the  wrongs  mentioned 
in  section  nineteen  hundred  and  eighty,  Revised  Statutes,  are  about 
to  be  done,  and,  having  power  to  prevent  or  aid  in  preventing  the 
same,  neglects  or  refuses  so  to  do,  to  recover  damages  for  any  such 
wrongful  act 

Of  suits  to  redress  the  deprivation,  under  color  of  law,  of  civ- 
il rights 

Fourteenth.  Of  all  suits  at  law  or  in  equity,  authorized  by  law 
to  be  brought  by  any  person  to  redress  the  deprivation,  under  color 
of  any  law,  statute,  ordinance,  regulation,  custom,  or  usage,  of  any 
State,  of  any  right,  privilege,  or  immunity,  secured  by  the  Constitu- 
tion of  the  United  States,  or  of  any  right  secured  by  any  law  of  the 
United  States  providing  for  equal  rights  of  citizens  of  the  United 
States,  or  of  all  persons  within  the  jurisdiction  of  the  United  States. 

Of  suits  to  recover  certain  offices 

Fifteenth.  Of  all  suits  to  recover  possession  of  any  office,  except 
that  of  elector  of  President  or  Vice  President,  Representative  in  or 
Delegate  to  Congress,  or  member  of  a  State  legislature,  authorized 
by  law  to  be  brought,  wherein  it  appears  that  the  sole  question  touch- 
ing the  title  to  such  office  arises  out  of  the  denial  of  the  right  to  vote 
to  any  citizen  offering  to  vote,  on  account  of  race,  color,  or  previous 
condition  of  servitude:  Provided,  That  such  jurisdiction  shall  ex- 
tend only  so  far  as  to  determine  the  rights  of  the  parties  to  such  of- 
fice by  reason  of  the  denial  of  the  right  guaranteed  by  the  Constitu- 
tion of  the  United  States,  and  secured  by  any  law,  to  enforce  the 
right  of  citizens  of  the  United  States  to  vote  in  all  the  States. 

Of  suits  against  national-banking  associations 

Sixteenth.  Of  all  cases  commenced  by  the  United  States,  or  by 
direction  of  any  officer  thereof,  against  any  national  banking  asso- 
ciation, and  cases  for  winding  up  the  affairs  of  any  such  bank;  and 
of  all  suits  brought  by  any  banking  association  established  in  the 
district  for  which  the  court  is  held,  under  the  provisions  of  title  "Na- 
tional Banks,"  Revised  Statutes,  to  enjoin  the  Comptroller  of  the 
Currency,  or  any  receiver  acting  under  his  direction,  as  provided  by 
said  title.  And  all  national  banking  associations  established  under 
the  laws  of  the  United  States  shall,  for  the  purposes  of  all  other 
actions  by  or  against  them,  real,  personal,  or  mixed,  and  all  suits  in 
equity,  be  deemed  citizens  of  the  States  in  which  they  are  respectively 
located. 


632  APPENDIX 

Of  suits  by  aliens  for  torts 

Seventeenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only,  in 
violation  of  the  laws  of  nations  or  of  a  treaty  of  the  United  States. 

Of  suits  against  consuls  and  vice  consuls 

Eighteenth.     Of  all  suits  against  consuls  aand  vice  consuls. 

Of  suits  and  proceedings  in  bankruptcy 

Nineteenth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Of  suits  against  the  United  State* 

Twentieth.  Concurrent  with  the  Court  of  Claims,  of  all  claims  not 
exceeding  ten  thousand  dollars  founded  upon  the  Constitution  of  the 
United  States  or  any  law  of  Congress,  or  upon  any  regulation  of  an 
Executive  Department,  or  upon  any  contract,  express  or  implied, 
with  the  Government  of  the  United  States,  or  for  damages,  liquidated 
or  unliquidated,  in  cases  not  sounding  in  tort,  in  respect  to  which 
claims  the  party  would  be  entitled  to  redress  against  the  United 
States,  either  in  a  court  of  law,  equity,  or  admiralty,  if  the  United 
States  were  suable,  and  of  all  set-offs,  counterclaims,  claims  for  dam- 
ages, whether  liquidated  or  unliquidated,  or  other  demands  whatso- 
ever on  the  part  of  the  Government  of  the  United  States  against  any 
claimant  against  the  Government  in  said  court:  Provided,  however, 
That  nothing  in  this  paragraph  shall  be  construed  as  giving  to  either 
the  district  courts  or  the  Court  of  Claims  jurisdiction  to  hear  and 
determine  claims  growing  out  of  the  late  Civil  War,  and  common- 
ly known  as  "war  claims,"  or  to  hear  and  determine  other  claims 
which  had  been  rejected  or  reported  on  adversely  prior  to  the  third 
day  of  March,  eighteen  hundred  and  eighty-seven,  by  any  court,  de- 
partment, or  commission  authorized  to  hear  and  determine  the  same, 
or  to  hear  and  determine  claims  for  pensions;  or  as  giving  to  the 
district  courts  jurisdiction  of  cases  brought  to  recover  fees,  salary, 
or  compensation  for  official  services  of  officers  of  the  United  States 
or  brought  for  such  purpose  by  persons  claiming  as  such  officers  or 
as  assignees  or  legal  representatives  thereof;  but  no  suit  pending  on 
the  twenty-seventh  day  of  June,  eighteen  hundred  and  ninety-eight, 
shall  abate  or  be  affected  by  this  provision:  And  provided  further, 
That  no  suit  against  the  Government  of  the  United  States  shall  be 
allowed  under  this  paragraph  unless  the  same  shall  have  been 
brought  within  six  years  after  the  right  accrued  for  which  the  claim 
is  made:  Provided,  That  the  claims  of  married  women,  first  accrued 
during  marriage,  of  persons  under  the  age  of  twenty-one  years,  first 
accrued  during  minority,  and  of  idiots,  lunatics,  insane  persons,  and 
persons  beyond  the  seas  at  the  time  the  claim  accrued,  entitled  to  the 
claim,  shall  not  be  barred  if  the  suit  be  brought  within  three  years 
after  the  disability  has  ceased;  but  no  other  disability  than  those 
enumerated  shall  prevent  any  claim  from  being  barred,  nor  shall 
any  of  the  said  disabilities  operate  cumulatively.  All  suits  brought 


THE    JUDICIAL    CODE  633 

and  tried  under  the  provisions  of  this  paragraph  shall  be  tried  by 
the  court  without  a  Jury. 

Of  suits  for  the  unlawful  incosure   of  public  lands 

Twenty-first.  Of  proceedings  in  equity,  by  writ  of  injunction,  to 
restrain  violations  of  the  provisions  of  laws  of  the  United  States  to 
prevent  the  unlawful  inclosure  of  public  lands;  and  it  shall  be  suffi- 
cient to  give  the  court  jurisdiction  if  service  of  original  process  be 
had  in  any  civil  proceeding  on  any  agent  or  employee  having  charge 
or  control  of  the  inclosure. 

Of  suits   under  immigration  and  contract-labor  laws 

Twenty-second.  Of  all  suits  and  proceedings  arising  under  any 
law  regulating  the  immigration  of  aliens,  or  under  the  contract  labor 
laws. 

Of    suits   against   trusts,    monopolies,    and   unlawful    combina- 
tions 

Twenty-third.  Of  all  suits  and  proceedings  arising  under  any  law 
to  protect  trade  and  commerce  against  restraints  and  monopolies. 

Of  suits  concerning  allotments  of  land  to  Indians 

Twenty-fourth.  Of  all  actions,  suits,  or  proceedings  involving  the 
right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or  descent, 
to  any  allotment  of  land  under  any  law  or  treaty.  And  the  judg- 
ment or  decree  of  any  such  court  in  favor  of  any  claimant  to  an  al- 
lotment of  land  shall  have  the  same  effect,  when  properly  certified 
to  the  Secretary  of  the  Interior,  as  if  such  allotment  had  been  al- 
lowed and  approved  by  him;  but  this  provision  shall  not  apply  to 
any  lands  now  or  hereafter  held  by  either  of  the  Five  Civilized 
Tribes,  the  Osage  Nation  of  Indians,  nor  to  any  of  the  lands  within 
the  Quapaw  Indian  Agency:  Provided,  That  the  right  of  Appeal 
shall  be  allowed  to  either  party  as  in  other  cases.  (As  amended  De- 
cember 21,  1911,  37  Stat.  46.) 

Of  partition  suits  where  United  States  is  joint  tenant 

Twenty-fifth.  Of  suits  in  equity  brought  by  any  tenant  in  com- 
mon or  joint  tenant  for  the  partition  of  lands  in  cases  where  the 
United  States  is  one  of  such  tenants  in  common  or  joint  tenants, 
such  suits  to  be  brought  in  the  district  in  which  land  is  situate. 

Appellate    jurisdiction  under   Chinese-exclusion   laws 

Sec.  25.  The  district  courts  shall  have  appellate  jurisdiction  of  the 
judgments  and  orders  of  United  States  commissioners  in  cases  arising 
under  the  Chinese  exclusion  laws. 

Appellate  jurisdiction  over  Yellowstone  National  Park 

Sec.  26.  The  district  court  for  the  district  of  Wyoming  shall 
have  Jurisdiction  of  all  felonies  committed  within  the  Yellowstone 
National  Park  and  appellate  jurisdiction  of  Judgments  in  cases  of  con- 


634 


APPENDIX 


viction  before  the  commissioner  authorized  to  be  appointed  tinder 
section  five  of  an  Act  entitled  "An  Act  to  protect  the  birds  and  an- 
imals in  Yellowstone  National  Park,  and  to  punish  crimes  in  said 
Park,  and  for  other  purposes,"  approved  May  seventh,  eighteen 
hundred  and  ninety-four. 

Jurisdiction  of    crimes    on   Indian   reservations   in    South.   Da- 
kota 

Sec.  27.  The  district  court  of  the  United  States  for  the  district  of 
South  Dakota  shall  have  jurisdiction  to  hear,  try,  and  determine  all 
actions  and  proceedings  in  which  any  person  shall  be  charged  with 
the  crime  of  murder,  manslaughter,  rape,  assault  with  intent  to  kill, 
arson,  burglary,  larceny,  or  assault  with  a  dangerous  weapon,  com- 
mitted within  the  limits  of  any  Indian  reservation  in  the  State  of 
South  Dakota. 


CHAPTER  THREE 
DISTRICT    COURTS— REMOVAL    OF    CAUSES 


Sec. 

28.  Removal  of  suits  from  State  to 

United  States  district  courts. 

29.  Pr6cedure  for  removal. 

30.  Suits  under  grants  of  land  from 

different  States. 

31.  Removal  of  causes  against  per- 

sons   denied    any    civil    rights, 
etc. 

32.  When  petitioner  is  in  actual  cus- 

tody of  State  court. 

33.  Suits    and    prosecutions    against 

'revenue  officers,  etc. 


Sec. 

34.  Removal  of  suits  by  aliens. 

35.  When  copies   of  records  are  re- 

fused by  clerk  of  State  court. 

36.  Previous   attachment  bonds,    or- 

ders, etc.,  remain  valid. 

37.  Suits  improperly  in  district  court 

may  be  dismissed  or  remanded. 

38.  Proceedings  in  suits  removed. 

39.  Time  for  filing  record;    return  of 

record,  how  enforced. 


Removal  of  suits  front  State  to  United  States  district  courts 
Sec.  28.     [See  ante,  p.  309.] 

Procedure  for  removal 

Sec.  29.     [See  ante,  p.  351.] 

Suits  under  grants  of  land  from  different  States 

Sec.  30.     [See  ante,  p.  325.] 

Removal  of    causes    against   persons   denied    any    civil   rights, 
etc. 

Sec.  31.  When  any  civil  suit  or  criminal  prosecution  is  commenced 
in  any  State  court,  for  any  cause  whatsoever,  against  any  person  who 
is  denied  or  can  not  enforce  in  the  judicial  tribunals  of  the  State,  or 
in  the  part  of  the  State  where  such  suit  or  prosecution  is  pending, 
any  right  secured  to  him  by  any  law  providing  for  the  equal  civil 
rights  of  citizens  of  the  United  States,  or  of  all  persons  within  the 


THE    JUDICIAL    CODE  635 

jurisdiction  of  the  United  States,  or  against  any  officer,  civil  or  mili- 
tary, or  other  person,  for  any  arrest  or  imprisonment  or  other  tres- 
passes or  wrongs  made  or  committed  by  virtue  of  or  under  color  of 
authority  derived  from  any  law  providing  for  equal  rights  as  afore- 
said, or  for  refusing  to  do  any  act  on  the  ground  that  it  would  be 
inconsistent  with  such  law,  such  suit  or  prosecution  may,  upon  the 
petition  of  such  defendant,  filed  in  said  State  court  at  any  time  be- 
fore the  trial  or  final  hearing  of  the  cause,  stating  the  facts  and  ver- 
ified by  oath,  be  removed  for  trial  into  the  next  district  court  to  be 
held  in  the  district  where  it  is  pending.  Upon  the  filing  of  such  pe- 
tition all  further  proceedings  in  the  State  courts  shall  cease,  and 
shall  not  be  resumed  except  as  hereinafter  provided.  But  all  bail 
and  other  security  given  in  such  suit  or  prosecution  shall  continue 
in  like  force  and  effect  as  if  the  same  had  proceeded  to  final  judg- 
ment and  execution  in  the  State  court.  It  shall  be  the  duty  of  the 
clerk  of  the  State  court  to  furnish  such  defendant,  petitioning  for  a 
removal,  copies  of  said  process  against  him,  and  of  all  pleadings, 
depositions,  testimony,  and  other  proceedings  in  the  case.  If  such 
copies  are  filed  by  said  petitioner  in  the  district  court  on  the  first 
day  of  its  session,  the  cause  shall  proceed  therein  in  the  same  man- 
ner as  if  it  had  been  brought  there  by  original  process;  and  if  the 
said  clerk  refuses  or  neglects  to  furnish  such  copies,  the  petitioner 
may  thereupon  docket  the  case  in  the  district  court,  and  the  said 
court  shall  then  have  jurisdiction  therein,  and  may,  upon  proof  of 
such  refusal  or  neglect  of  said  clerk,  and  upon  reasonable  notice  to 
the  plaintiff,  require  the  plaintiff  to  file  a  declaration,  petition,  or 
complaint  in  the  cause;  and,  in  case  of  his  default,  may  order  a 
nonsuit,  and  dismiss  the  case  at  the  costs  of  the  plaintiff,  and  such 
dismissal  shall  be  a  bar  to  any  further  suit  touching  the  matter  in 
controversy.  But  if,  without  such  refusal  or  neglect  of  said  clerk 
to  furnish  such  copies  and  proof  thereof,  the  petitioner  for  removal 
fails  to  file  copies  in  the  district  court,  as  herein  provided,  a  certifi- 
cate, under  the  seal  of  the  district  court,  stating  such  failure,  shall 
be  given,  and  upon  the  production  thereof  in  said  State  court  the 
cause  shall  proceed  therein  as  If  no  petition  for  removal  had  been 
filed. 

When  petitioner  is  in  actual  custody  of  State  court 

Sec.  32.  When  all  the  acts  necessary  for  the  removal  of  any  suit 
or  prosecution,  as  provided  in  the  preceding  section,  have  been  per- 
formed, and  the  defendant  petitioning  for  such  removal  is  in  actual 
custody  on  process  issued  by  said  State  court,  it  shall  be  the  duty 
of  the  clerk  of  said  district  court  to  issue  a  writ  of  habeas  corpus 
cum  causa,  and  of  the  marshal,  by  virtue  of  said  writ,  to  take  the 
body  of  the  defendant  into  his  custody,  to  be  dealt  with  in  said  dis- 
trict court  according  to  law  and  the  orders  of  said  court,  or,  in  vaca- 
tion, of  any  judge  thereof ;  and  the  marshal  shall  file  with  or  deliver 
to  the  clerk  of  said  State  court  a  duplicate  copy  of  said  writ. 


636  APPENDIX 

Suits  and  prosecutions  against  revenue  officers,  etc. 

Sec.  33.  When  any  civil  suit  or  criminal  prosecution  is  commenc- 
ed in  any  court  of  a  State  against  any  officer  appointed  under  or  act- 
ing by  authority  of  any  revenue  law  of  the  United  States  now  or 
hereafter  enacted,  or  against  any  person  acting  under  or  by  authori- 
ty -of  any  such  officer,  on  account  of  any  act  done  under  color  of  his 
office  or  of  any  such  law,  or  on  account  of  any  right,  title,  or  author- 
ity claimed  by  such  officer  or  other  person  under  any  such  law;  or  is 
commenced  against  any  person  holding  property  or  estate  by  title  de- 
rived from  any  such  officer,  and  affects  the  validity  of  any  such  rev- 
enue law ;  or  when  any  suit  Is  commenced  against  any  person  for  or 
on  account  of  anything  done  by  him  while  an  officer  of  either  House 
of  Congress  in  the  discharge  of  his  official  duty,  in  executing  any  or- 
der of  such  House,  the  said  suit  or  prosecution  may,  at  any  time  be- 
fore the  trial  or  final  hearing  thereof,  be  removed  for  trial  into  the 
district  court  next  to  be  holden  in  the  district  where  the  same  is 
pending,  upon  the  petition  of  such  defendant  to  said  district  court, 
and  in  the  following  manner:  Said  petition  shall  set  forth  the  na- 
ture of  the  suit  or  prosecution  and  be  verified  by  affidavit,  and,  to- 
gether with  a  certificate  signed  by  an  attorney  or  counselor  at  law 
of  some  court  of  record  of  the  State  where  such  suit  or  prosecution 
is  commenced,  or  of  the  United  States,  stating  that,  as  counsel  for 
the  petitioner,  he  has  examined  the  proceedings  against  him  and 
carefully  inquired  into  all  the  matters  set  forth  in  the  petition,  and 
that  he  believes  them  to  be  true,  shall  be  presented  to  the  said  dis- 
trict court,  if  in  session,  or  if  it  be  not,  to  the  clerk  thereof  at  his 
office,  and  shall  be  filed  in  said  office.  The  cause  shall  thereupon  be 
entered  on  the  docket  of  the  district  court,  and  shall  proceed  as  a 
cause  originally  commenced  in  that  court ;  but  all  bail  and  other  se- 
curity given  upon  such  suit  or  prosecution  shall  continue  in  like  force 
and  effect  as  if  the  same  had  proceeded  to  final  judgment  and  execu- 
tion in  the  State  court.  When  the  suit  is  commenced  in  the  State 
court  by  summons,  subpoena,  petition,  or  other  process  except  capias, 
the  clerk  of  the  district  court  shall  issue  a  writ  of  certiorari  to  the 
State  court,  requiring  it  to  send  to  the  district  court  the  record  and 
proceedings  in  the  cause.  When  it  is  commenced  by  capias  or  by 
any  other  similar  form  or  proceeding  by  which  a  personal  arrest  is 
ordered,  he  shall  issue  a  writ  of  habeas  corpus  cum  causa,  a  dupli- 
cate of  which  shall  be  delivered  to  the  clerk  of  the  State  court,  or 
left  at  his  office,  by  the  marshal  of  the  district  or  his  deputy,  or  by 
some  person  duly  authorized  thereto;  and  thereupon  it  shall  be  the 
duty  of  the  State  court  to  stay  all  further  proceedings  in  the  cause, 
and  the  suit  or  prosecution,  upon  delivery  of  such  process,  or  leaving 
the  same  as  aforesaid,  shall  be  held  to  be  removed  to  the  district 
court,  and  any  further  proceedings,  trial,  or  judgment  therein  in  the 
State  court  shall  be  void.  If  the  defendant  in  the  suit  or  prosecution 
be  in  actual  custody  on  mesne  process  therein,  it  shall  be  the  duty 
of  the  marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum  causa, 


THE    JUDICIAL    CODE  C37 

to  take  the  body  of  the  defendant  Into  his  custody,  to  be  dealt  with 
in  the  cause  according  to  law  and  the  order  of  the  district  court,  or, 
in  vacation,  of  any  judge  thereof;  and  if,  upon  the  removal  of  such 
suit  or  prosecution,  it  is  made  to  appear  to  the  district  court  that 
no  copy  of  the  record  and  proceedings  therein  in  the  State  court  can 
be  obtained,  the  district  court  may  allow  and  require  the  plaintiff 
to  proceed  de  novo  and  to  file  a  declaration  of  his  cause  of  action, 
and  the  parties  may  thereupon  proceed  as  in  actions  originally 
brought  in  said  district  court.  On  failure  of  the  plaintiff  so  to  pro- 
ceed, judgment  of  non  prosequitur  may  be  rendered  against  him, 
with  costs  for  the  defendant. 

Removal  of  suits  by  aliens 

Sec.  34.  Whenever  a  personal  action  has  been  or  shall  be  brought 
in  any  State  court  by  an  alien  against  any  citizen  of  a  State  who 
is,  or  at  the  time  the  alleged  action  accrued  was,  a  civil  officer  of 
the  United  States,  being  a  non-resident  of  that  State  wherein  juris- 
diction is  obtained  by  the  State  court,  by  personal  service  of  process, 
such  action  may  be  removed  into  the  district  court  of  the  United 
States  in  and  for  the  district  in  which  the  defendant  shall  have 
been  served  with  the  process,  in  the  same  manner  as  now  provided 
for  the  removal  of  an  action  brought  in  a  State  court  by  the  provi- 
sions of  the  preceding  section. 

When  copies  of  records  are  refused  by  clerk  of  State  court 

Sec.  35.  In  any  case  where  a  party  is  entitled  to  copies  of  the 
records  and  proceedings  in  any  suit  or  prosecution  in  a  State  court, 
to  be  used  in  any  court  of  the  United  States,  if  the  clerk  of  said 
State  court,  upon  demand,  and  the  payment  or  tender  of  the  legal 
fees,  refuses  or  neglects  to  deliver  to  him  certified  copies  of  such 
records  and  proceedings,  the  court  of  the  United  States  in  which 
such  records  and  proceedings  are  needed  may,  on  proof  by  affidavit 
that  the  clerk  of  said  State  court  has  refused  or  neglected  to  deliver 
copies  thereof,  on  demand  as  aforesaid,  direct  such  record  to  be  sup- 
plied by  affidavit  or  otherwise,  as  the  circumstances  of  the  case  may 
require  and  allow;  and  thereupon  such  proceeding,  trial,  and  judg- 
ment may  be  had  in  the  said  court  of  the  United  States,  and  all  such 
processes  awarded,  as  if  certified  copies  of  such  records  and  proceed- 
ings had  been  regularly  before  the  said  court 

Previous  attachment  bonds,   orders,   etc.,  remain  valid 

Sec.  36.  When  any  suit  shall  be  removed  from  a  State  court  to  a 
district  court  of  the  United  States,  any  attachment  or  sequestration 
of  the  goods  or  estate  of  the  defendant  had  in  such  suit  in  the  State 
court  shall  hold  the  goods  or  estate  so  attached  or  sequestered  to 
answer  the  final  judgment  or  decree  in  the  same  manner  as  by  law 
they  would  have  been  held  to  answer  final  judgment  or  decree  had  it 
been  rendered  by  the  court  in  which  said  suit  was  commenced.  All 
bonds,  undertakings,  or  security  given  by  either  party  in  such  suit 


638  APPENDIX 

prior  to  its  removal  shall  remain  valid  and  effectual  notwithstanding 
said  removal;  and  all  injunctions,  orders,  and  other  proceedings  had 
in  such  suit  prior  to  its  removal  shall  remain  in  full  force  and  ef- 
fect until  dissolved  or  modified  by  the  court  to  which  such  suit  shall 
be  removed. 

Suits    improperly    in    district    court    may    be    dismissed    or   re- 
manded 
Sec.  37.     [See  ante,  p.  285.] 

Proceedings  in  suits  removed 

Sec.  38.  The  district  court  of  the  United  States  shall,  in  all  suits 
removed  under  the  provisions  of  this  chapter,  proceed  therein  as  if 
the  suit  had  been  originally  commenced  in  said  district  court,  and 
the  same  proceedings  had  been  taken  in  such  suit  in  said  district 
court  as  shall  have  been  had  therein  in  said  State  court  prior  to  its 
removal. 

Time  for  filing  record;    return  of  record,  now  enforced 

Sec.  39.  In  all  causes  removable  under  this  chapter,  if  the  clerk 
of  the  State  court  in  which  any  such  cause  shall  be  pending  shall 
refuse  to  any  one  or  more  of  the  parties  or  persons  applying  to  re- 
move the  same,  a  copy  of  the  record  therein,  after  tender  of  legal 
fees  for  such  copy,  said  clerk  so  offending  shall,  on  conviction  there- 
of in  the  district  court  of  the  United  States  to  which  said  action  or 
proceeding  was  removed,  be  fined  not  more  than  one  thousand  dol- 
lars, or  imprisoned  not  more  than  one  year,  or  both.  The  district 
court  to  which  any  cause  shall  be  removable  under  this  chapter  shall 
have  power  to  issue  a  writ  of  certiorari  to  said  State  court  com- 
manding said  State  court  to  make  return  of  the  record  in  any  such 
cause  removed  as  aforesaid,  or  in  which  any  one  or  more  of  the 
plaintiffs  or  defendants  have  complied  with  the  provisions  of  this 
chapter  for  the  removal  of  the  same,  and  enforce  said  writ  according 
to  law.  If  it  shall  be  impossible  for  the  parties  or  persons  remov- 
ing any  cause  under  this  chapter,  or  complying  with  the  provisions 
for  the  removal  thereof,  to  obtain  such  copy,  for  the  reason  that  the 
clerk  of  said  State  court  refuses  to  furnish  a  copy,  on  payment  of 
legal  fees,  or  for  any  other  reason,  the  district  court  shall  make  an 
order  requiring  the  prosecutor  in  any  such  action  or  proceeding  to 
enforce  forfeiture  or  recover  penalty,  as  aforesaid,  to  file  a  copy  of 
the  paper  or  proceeding  by  which  the  same  was  commenced,  within 
such  time  as  the  court  may  determine;  and  in  default  thereof  the 
court  shall  dismiss  the  said  action  or  proceeding;  but  if  said  order 
shall  be  complied  with,  then  said  district  court  shall  require  the 
other  party  to  plead,  and  said  action  or  proceeding  shall  proceed  to 
final  judgment.  The  said  district  court  may  make  an  order  requiring 
the  parties  thereto  to  plead  de  novo;  and  the  bond  given,  condition- 
ed as  aforesaid,  shall  be  discharged  so  far  as  it  requires  copy  of  the 
record  to  be  filed  as  aforesaid. 


THE    JUDICIAL    CODE 


CHAPTER  FOUR 
DISTRICT  COURTS— MISCELLANEOUS  PROVISIONS 


Sec. 

40.  Capital  cases;   where  triable. 

41.  Offenses  on  the  high  seas,  etc., 

where  triable. 

42.  Offenses    begun    in    one    district 

and  completed  in  another. 

43.  Suits   for   penalties    and   forfei- 

tures, where  brought. 

44.  Suits  for  internal-revenue  taxes, 

where  brought. 

45.  Seizures,  where  cognizable. 

46.  Capture  of  insurrectionary  prop- 

erty, where  cognizable. 

47.  Certain    seizures    cognizable    in 

any  district  into  which  the 
property  is  taken. 

48.  Jurisdiction  in  patent  cases. 

49.  Proceedings  to  enjoin  Comptrol- 

ler of  the  Currency. 

50.  When  a  part  of  several  defend- 

ants can  not  be  served. 

51.  Civil  suits;   where  to  be  brought. 

52.  Suits  in  States  containing  more 

than  one  district. 

53.  Districts    containing    more    than 

one  division;  where  suit  to  be 
brought;  transfer  of  criminal 
cases. 

54.  Suits  of  a  local  nature,  where  to 

be  brought. 

55.  When   property  lies   in  different 

districts  in  same  State. 

56.  When   property   lies   in   different 

States  in  same  circuit;  juris- 
diction of  receiver. 


Sec. 

57.  Absent    defendants    in    suits    to 

enforce  liens,  remove  clouds  on 
titles,  etc. 

58.  Civil  causes  may  be  transferred 

to  another  division  of  district 
by  agreement. 

59.  Upon  creation  of  new  district  or 

division,  where  prosecution  to 
be  instituted  or  action  brought. 

60.  Creation     of     new     district,     or 

transfer  of  territory  not  to  di- 
vest lien;  how  lien  to  be  en- 
forced. 

61.  Commissioners      to      administer 

oaths  to  appraisers. 

62.  Transfer   of    records    to    district 

court  when  a  Territory  be- 
comes a  State. 

63.  District  judge  shall  demand  and 

compel  delivery  of  records  of 
territorial  court. 

64.  Jurisdiction  of  district  courts  in 

cases  transferred  from  territo- 
rial courts. 

65.  Receivers    to    manage    property 

according  to  State  laws. 

66.  Suits  against  receiver. 

67.  Certain    persons    not   to    be    ap- 

pointed or  employed  as  officers 
of  courts. 

68.  Certain  persons  not  to  be  mas- 

ters or  receivers. 


Capital  cases;   where  triable 

Sec.  40.  The  trial  of  offenses  punishable  with  death  shall  be  had 
in  the  county  where  the  offense  was  committed,  where  that  can  be 
done  without  great  inconvenience. 

Offenses  on  the  high  seas,  etc.,  where  triable 

Sec.  41.  The  trial  of  all  offenses  committed  upon  the  high  seas,  or 
elsewhere  out  of  the  jurisdiction  of  any  particular  State  or  district, 
shall  be  in  the  district  where  the  offender  is  found,  or  into  which  he 
is  first  brought. 

Offenses  begun  in  one  district  and  completed  in  another 

Sec.  42.  When  any  offense  against  the  United  States  is  begun  in 
one  judicial  district  and  completed  in  another,  it  shall  be  deemed  to 
have  been  committed  in  either,  and  may  be  dealt  with,  inquired  of, 
tried,  determined,  and  punished  in  either  district,  in  the  same  man- 
ner as  if  it  had  been  actually  and  wholly  committed  therein. 


640  APPENDIX 

Suits  for  penalties  and  forfeitures,  where  brought 

Sec.  43.  All  pecuniary  penalties  and  forfeitures  may  be  sued  for 
and  recovered  either  in  the  district  where  they  accrue  or  in  the  dis- 
trict where  the  offender  is  found. 

Suits  for  internal-revenue  taxes,  where  brought 

Sec.  44.  Taxes  accruing  under  any  law  providing  internal  revenue 
may  be  sued  for  and  recovered  either  in  the  district  where  the  liabil- 
ity for  such  tax  occurs  or  in  the  district  where  the  delinquent  resides. 

Seizures,    where   cognizable 

Sec.  45.  Proceedings  on  seizures  made  on  the  high  seas,  for  for- 
feiture under  any  law  of  the  United  States,  may  be  prosecuted  in 
any  district  into  which  the  property  so  seized  is  brought  and  pro- 
ceedings instituted.  Proceedings  on  such  seizures  made  within  any 
district  shall  be  prosecuted  in  the  district  where  the  seizure  is  made, 
except  in  cases  where  it  is  otherwise  provided. 

Capture  of  insurrectionary  property,   where    cognizable 

Sec.  46.  Proceedings  for  the  condemnation  of  any  property  cap- 
tured, whether  on  the  high  seas  or  elsewhere  out  of  the  limits  of 
any  judicial  district,  or  within  any  district,  on  account  of  its  being 
purchased  or  acquired,  sold  or  given,  with  intent  to  use  or  employ 
the  same,  or  to  suffer  it  to  be  used  or  employed,  in  aiding,  abetting, 
or  promoting  any  insurrection  against  the  Government  of  the  United 
States,  or  knowingly  so  used  or  employed  by  the  owner  thereof,  or 
with  his  consent,  may  be  prosecuted  in  any  district  where  the  same 
may  be  seized,  or  into  which  it  may  be  taken  and  proceedings  first 
instituted. 

Certain    seizures    cognizable    in    any    district    into    which   the 
property  is  taken 

Sec.  47.  Proceedings  on  seizures  for  forfeiture  of  any  vessel  or 
cargo  entering  any  port  of  entry  which  has  been  closed  by  the  Presi- 
dent in  pursuance  of  law,  or  of  goods  and  chattels  coming  from  a 
State  or  section  declared  by  proclamation  of  the  President  to  be  in 
insurrection  into  other  parts  of  the  United  States,  or  of  any  vessel 
or  vehicle  conveying  such  property,  or  conveying  persons  to  or  from 
such  State  or  section,  or  of  any  vessel  belonging,  in  whole  or  in 
part,  to  any  inhabitant  of  such  State  or  section,  may  be  prosecuted 
in  any  district  into  which  the  property  so  seized  may  be  taken  and 
proceedings  instituted;  and  the  district  court  thereof  shall  have  as 
full  jurisdiction  over  such  proceedings  as  if  the  seizure  was  made 
in  that  district. 

Jurisdiction  in  patent   cases 

Sec.  48.  In  suits  brought  for  the  infringement  of  letters  patent  the 
district  courts  of  the  United  States  shall  have  jurisdiction,  in  law 
or  in  equity,  in  the  district  of  which  the  defendant  is  an  inhabitant, 


THE    JUDICIAL    CODE  641 

or  in  any  district  in  which  the  defendant,  whether  a  person,  partner- 
ship, or  corporation,  shall  have  committed  acts  of  infringement  and 
have  a  regular  and  established  place  of  business.  If  such  suit  is 
brought  in  a  district  of  which  the  defendant  is  not  an  inhabitant, 
but  in  which  such  defendant  has  a  regular  and  established  place  of 
business,  service  of  process,  summons,  or  subpoena  upon  the  defend- 
ant may  be  made  by  service  upon  the  agent  or  agents  engaged  in  con- 
ducting such  business  in  the  district  in  which  suit  is  brought 

Proceedings   to   enjoin   Comptroller   of   the   Currency 

Sec.  49.  All  proceedings  by  any  national  banking  association  to 
enjoin  the  Comptroller  of  the  Currency,  under  the  provisions  of  any 
law  relating  to  national  banking  associations,  shall  be  had  in  the 
district  where  such  association  is  located. 

When  a  part  of  several  defendants  can  not  be  served 

Sec.  50.     [See  ante,  p.  256.] 

Civil  suits;    where  to  be  brought 

Sec.  51.     [See  ante,  p.  264.] 

Suits  in  States  containing  more  than  one  district 

Sec.  52.     [See  ante,  p.  271.] 

Districts    containing    more    than    one    division;    where    suit    to 
be  brought;    transfer   of   criminal  cases 

Sec.  53.  When  a  district  contains  more  than  one  division,  every 
suit  not  of  a  local  nature  against  a  single  defendant  must  be  brought 
in  the  division  where  he  resides ;  but  if  there  are  two  or  more  de- 
fendants residing  in  different  divisions  of  the  district  it  may  be 
brought  in  either  division.  All  mesne  and  final  process  subject  to 
the  provisions  of  this  section  may  be  served  and  executed  in  any  or 
all  of  the  divisions  of  the  district,  or  if  the  State  contains  more  than 
one  district,  then  in  any  of  such  districts,  as  provided  in  the  preced- 
ing section.  All  prosecutions  for  crimes  or  offenses  shall  be  had 
within  the  division  of  such  districts  where  the  same  were  committed, 
unless  the  court,  or  the  judge  thereof,  upon  the  application  of  the 
defendant,  shall  order  the  cause  to  be  transferred  for  prosecution  to 
another  division  of  the  district.  When  a  transfer  is  ordered  by  the 
court  or  judge,  all  the  papers  in  the  case,  or  certified  copies  thereof, 
shall  be  transmitted  by  the  clerk,  under  the  seal  of  the  court,  to  the 
division  to  which  the  cause  is  so  ordered  transferred;  and  thereupon 
the  cause  shall  be  proceeded  with  in  said  division  in  the  same  man- 
ner as  if  the  offense  had  been  committed  therein.  In  all  cases  of 
the  removal  of  suits  from  the  courts  of  a  State  to  the  district  court 
of  the  United  States  such  removal  shall  be  to  the  United  States  dis- 
trict court  in  the  division  in  which  the  county  is  situated  from  which 
the  removal  is  made;  and  the  time  within  which  the  removal  shall 
be  perfected,  in  so  far  as  it  refers  to  or  is  regulated  by  the  terms 
HUGHES  FED.PB.(2o  ED.)— 41 


642  APPENDIX 

of  United  States  courts,  shall  be  deemed  to  refer  to  the  terms  of  the 
United  States  district  court  in  such  division. 

Suits  of  a  local  nature,  where  to  be  brought 

Sec.  54.     [See  ante,  p.  272.] 

When  property  lies  in  different  districts  in  same  State 
Sec.  55.    [See  ante,  p.  272.] 

When  property  lies  in  different  States  in  same  circuit;  juris- 
diction of  receiver 

Sec.  56.  Where  in  any  suit  in  which  a  receiver  shall  be  appointed 
the  land  or  other  property  of  a  fixed  character,  the  subject  of  the 
suit,  lies  within  different  States  in  the  same  judicial  circuit,  the  re- 
ceiver so  appointed  shall,  upon  giving  bond  as  required  by  the  court, 
immediately  be  vested  with  full  jurisdiction  and  control  over  all  the 
property,  the  subject  of  the  suit,  lying  or  being  within  such  circuit ; 
subject,  however,  to  the  disapproval  of  such  order,  within  thirty 
days  thereafter,  by  the  circuit  court  of  appeals  for  such  circuit,  or 
by  a  circuit  judge  thereof,  after  reasonable  notice  to  adverse  parties 
and  an  opportunity  to  be  heard  upon  the  motion  for  such  disapprov- 
al; and  subject,  also,  to  the  filing  and  entering  in  the  district  court 
for  each  district  of  the  circuit  in  which  any  portion  of  the  property 
may  lie  or  be,  within  ten  days  thereafter,  of  a  duly  certified  copy  of 
the  bill  and  of  the  order  of  appointment.  The  disapproval  of  such 
appointment  within  such  thirty  days,  or  the  failure  to  file  such  cer- 
tified copy  of  the  bill  and  order  of  appointment  within  ten  days,  as 
herein  required,  shall  divest  such  receiver  of  jurisdiction  over  all 
such  property  except  that  portion  thereof  lying  or  being  within  the 
State  in  which  the  suit  is  brought.  In  any  case  coming  within  the 
provisions  of  this  section,  in  which  a  receiver  shall  be  appointed, 
process  may  issue  and  be  executed  within  any  district  of  the  circuit 
in  the  same  manner  and  to  the  same  extent  as  if  the  property  were 
wholly  within  the  same  district;  but  orders  affecting  such  property 
shall  be  entered  of  record  in  each  district  in  which  the  property  af- 
fected may  lie  or  be. 

Absent  defendants  in  suits  to  enforce  liens,  remove  clouds  on 
titles,  etc. 

Sec.  57.    [See  ante,  p.  273.J 

Civil  causes  may  be  transferred  to  another  division  of  district 
by  agreement 

Sec.  58.  Any  civil  cause,  at  law  or  in  equity,  may,  on  written 
stipulation  of  the  parties  or  of  their  attorneys  of  record  signed  and 
filed  with  the  papers  in  the  case,  in  vacation  or  in  term,  and  on  the 
written  order  of  the  judge  signed  and  filed  in  the  case  in  vacation  or 
on  the  order  of  the  court  duly  entered  of  record  in  term,  be  transfer- 
red to  the  court  of  any  other  division  of  the  same  district,  without 
regard  to  the  residence  of  the  defendants,  for  trial.  When  a  cause 


THE    JUDICIAL    CODE  643 

shall  be  ordered  to  be  transferred  to  a  court  In  any  other  division,  it 
shall  be  the  duty  of  the  clerk  of  the  court  from  which  the  transfer  is 
made  to  carefully  transmit  to  the  clerk  of  the  court  to  which  the 
transfer  is  made  the  entire  file  of  papers  in  the  cause  and  all  docu- 
ments and  deposits  in  his  court  pertaining  thereto,  together  with  a 
certified  transcript  of  the  records  of  all  orders,  interlocutory  decrees, 
or  other  entries  in  the  cause ;  and  he  shall  certify,  under  the  seal  of 
the  court,  that  the  papers  sent  are  all  which  are  on  file  in  said  court 
belonging  to  the  cause;  for  the  performance  of  which  duties  said 
clerk  so  transmitting  and  certifying  shall  receive  the  same  fees  as 
are  now  allowed  by  law  for  similar  services,  to  be  taxed  in  the  bill 
of  costs,  and  regularly  collected  with  the  other  costs  in  the  cause;  and 
such  transcript,  when  so  certified  and  received,  shall  henceforth  con- 
stitute a  part  of  the  record  of  the  cause  in  the  court  to  which  the 
transfer  shall  be  made.  The  clerk  receiving  such  transcript  and  orig- 
inal papers  shall  file  the  same  and  the  case  shall  then  proceed  to 
final  disposition  as  other  cases  of  a  like  nature. 

Upon  creation  of  new  district  or  division,  where  prosecntion 

to  be  instituted  or  action  brought 

Sec.  59.  Whenever  any  new  district  or  division  has  been  or  shall 
be  established,  or  any  county  or  territory  has  been  or  shall  be  trans- 
ferred from  one  district  or  division  to  another  district  or  division, 
prosecutions  for  crimes  and  offenses  committed  within  such  district, 
division,  county,  or  territory  prior  to  such  transfer,  shall  be  com- 
menced and  proceeded  with  the  same  as  if  such  new  district  or  divi- 
sion had  not  been  created,  or  such  county  or  territory  had  not  been 
transferred,  unless  the  court,  upon  the  application  of  the  defendant, 
shall  order  the  cause  to  be  removed  to  the  new  district  or  division  for 
trial.  Civil  actions  pending  at  the  time  of  the  creation  of  any  such 
district  or  division,  or  the  transfer  of  any  such  county  or  territory, 
and  arising  within  the  district  or  division  so  created  or  the  county  or 
territory  so  transferred,  shall  be  tried  in  the  district  or  division  as  it 
existed  at  the  time  of  the  institution  of  the  action,  or  in  the  district 
or  division  so  created,  or  to  which  the  county  or  territory  is  or  shall 
be  so  transferred,  as  may  be  agreed  upon  by  the  parties,  or  as  the 
court  shall  direct.  The  transfer  of  such  prosecutions  and  actions 
shall  be  made  in  the  manner  provided  in  the  section  last  preceding. 

Creation  of  new  district,  or  transfer  of  territory  not  to  divest 
lien;    how  lien  to  be  enforced 

Sec.  60.  The  creation  of  a  new  district  or  division,  or  the  trans- 
fer of  any  county  or  territory  from  one  district  or  division  to  anoth- 
er district  or  division,  shall  not  affect  or  divest  any  lien  theretofore 
acquired  in  the  circuit  or  district  court  by  virtue  of  a  decree,  judg- 
ment, execution,  attachment,  seizure,  or  otherwise,  upon  property 
situated  or  being  within  the  district  or  division  so  created,  or  the 
county  or  territory  so  transferred.  To  enforce  any  such  lien,  the 
clerk  of  the  court  in  which  the  same  is  acquired,  upon  the  request 


644  APPENDIX 

and  at  the  cost  of  the  party  desiring  the  same,  shall  make  a  true  and 
certified  copy  of  the  record  thereof,  which,  when  so  made  and  certi- 
fied, and  filed  in  the  proper  court  of  the  district  or  division  in  which 
such  property  is  situated  or  shall  be,  after  such  transfer,  shall  con- 
stitute the  record  of  such  lien  in  such  court,  and  shall  be  evidence  in 
all  courts  and  places  equally  with  the  original  thereof;  and  there- 
after like  proceedings  shall  be  had  thereon,  and  with  the  same  effect, 
as  though  the  cause  or  proceeding  had  been  originally  instituted  in 
such  court  The  provisions  of  this  section  shall  apply  not  only  in  all 
cases  where  a  district  or  division  is  created,  or  a  county  or  any  ter- 
ritory is  transferred  by  this  or  any  future  Act,  but  also  in  all  cases 
where  a  district  or  division  has  been  created,  or  a  county  or  any  ter- 
ritory has  been  transferred  by  any  law  heretofore  enacted. 

Commissioners  to   administer  oaths  to  appraisers 

Sec.  61.  Any  district  judge  may  appoint  commissioners,  before 
whom  appraisers  of  vessels  or  goods  and  merchandise  seized  for 
breaches  of  any  law  of  the  United  States,  may  be  sworn;  and  such 
oaths,  so  taken,  shall  be  as  effectual  as  if  taken  before  the  judge  in 
open  court. 

Transfer   of   records   to   district   court   when   a   Territory   be- 
comes a  State 

Sec.  62.  When  any  Territory  is  admitted  as  a  State,  and  a  district 
court  is  established  therein,  all  the  records  of  the  proceedings  in  the 
several  cases  pending  in  the  highest  court  of  said  Territory  at  the 
time  of  such  admission,  and  all  records  of  the  proceedings  in  the 
several  cases  in  which  judgments  or  decrees  had  been  rendered  in 
said  territorial  court  before  that  time,  and  from  which  writs  of 
error  could  have  been  sued  out  or  appeals  could  have  been  taken,  or 
from  which  writs  of  error  had  been  sued  out  or  appeals  had  been 
taken  and  prosecuted  to  the  Supreme  Court  or  to  the  circuit  court 
of  appeals,  shall  be  transferred  to  and  deposited  in  the  district  court 
for  the  said  State. 

District  judge  shall  demand  and  compel  delivery  of  records  of 
territorial  court 

Sec.  63.  It  shall  be  the  duty  of  the  district  judge,  in  the  case  pro- 
vided in  the  preceding  section,  to  demand  of  the  clerk,  or  other  per- 
son having  possession  or  custody  of  the  records  therein  mentioned, 
the  delivery  thereof,  to  be  deposited  in  said  district  court;  and  in 
case  of  the  refusal  of  such  clerk  or  person  to  comply  with  such  de- 
mand, the  said  district  judge  shall  compel  the  delivery  of  such  rec- 
ords by  attachment  or  otherwise,  according  to  law. 

Jurisdiction  of  district  courts  in  cases  transferred  from  terri- 
torial courts 

.  Sec.  64.    When  any  Territory  is  admitted  as  a  State,  and  a  district 
court  is  established  therein,  the  said  district  court  shall  take  cogni- 


THE    JUDICIAL    CODE  645 

zance  of  all  cases  which  were  pending  and  undetermined  in  the  trial 
courts  of  such  Territory,  from  the  judgments  or  decrees  to  be  ren- 
dered in  which  writs  of  error  could  have  been  sued  out  or  appeals 
taken  to  the  Supreme  Court  or  to  the  circuit  court  of  appeals,  and 
shall  proceed  to  hear  and  determine  the  same. 

Receivers  to  manage  property  according  to  State  laws 

Sec.  65.  Whenever  in  any  cause  pending  in  any  court  of  the  Unit- 
ed States  there  shall  be  a  receiver  or  manager  in  possession  of  any 
property,  such  receiver  or  manager  shall  manage  and  operate  such 
property  according  to  the  requirements  of  the  valid  laws  of  the 
State  in  which  such  property  shall  be  situated,  in  the  same  manner 
that  the  owner  or  possessor  thereof  would  be  bound  to  do  if  in  pos- 
session thereof.  Any  receiver  or  manager  who  shall  willfully  violate 
any  provision  of  this  section  shall  be  fined  not  more  than  three  thou- 
sand dollars,  or  imprisoned  not  more  than  one  year,  or  both. 

Suits  against  receiver 

Sec.  66.  Every  receiver  or  manager  of  any  property  appointed  by 
any  court  of  the  United  States  may  be  sued  in  respect  of  any  act  or 
transaction  of  his  in  carrying  on  the  business  connected  with  such 
property,  without  the  previous  leave  of  the  court  in  which  such  re- 
ceiver or  manager  was  appointed;  but  such  suit  shall  be  subject  to 
the  general  equity  jurisdiction  of  the  court  in  which  such  manager 
or  receiver  was  appointed  so  far  as  the  same  may  be  necessary  to 
the  ends  of  justice. 

Certain  persons  not  to  be  appointed  or  employed  as  officers  of 
conrts 

Sec.  67.  No  person  shall  be  appointed  to  or  employed  in  any  of- 
fice or  duty  in  any  court  who  is  related  by  affinity  or  consanguinity 
within  the  degree  of  first  cousin  to  the  judge  of  such  court:  Provid- 
ed, That  no  such  person  at  present  holding  a  position  or  employment 
in  a  circuit  court  shall  be  debarred  from  similar  appointment  or  em- 
ployment in  the  district  court  succeeding  to  such  circuit  court  juris- 
diction. (As  amended  December  21,  1911,  37  Stat  46.) 

Certain  persons  not  to  be  masters  or  receivers 

Sec.  68.  No  clerk  of  a  district  court  of  the  United  States  or  his 
deputy  shall  be  appointed  a  receiver  or  master  in  any  case,  except 
where  the  judge  of  said  court  shall  determine  that  special  reasons 
exist  therefor,  to  be  assigned  in  the  order  of  appointment 


CHAPTER  FIVE 

DISTRICT  COURTS— DISTRICTS,  AND  PROVISIONS  APPLICA- 
BLE TO  PARTICULAR  STATES 

[Omitted  as  of  no  general  interest] 


646 


APPENDIX 


CHAPTER  SIX 

CIRCUIT  COURTS  OF  APPEALS 


Sec. 

116.  Circuits. 

117.  Circuit  courts  of  appeals. 

118.  Circuit  judges. 

119.  Allotment  of  justices  to  the  cir- 

cuits. 

120.  Chief  Justice  and  associate  jus- 

tices of  Supreme  Court,  and 
district  judges,  may  sit  In  cir- 
cuit court  of  appeals. 

121.  Justices     allotted     to     circuits, 

how  designated. 

122.  Seals,    forms    of    process,    and 

rules. 

123.  Marshals. 

124.  Clerks. 

125.  Deputy  clerks;  appointment  and 

removal. 

126.  Terms. 

127.  Rooms  for  court,  how  provided. 

128.  Jurisdiction;      when     judgment 

final. 


Sec. 

129.  Appeals   in  proceedings  for  In- 

junctions and  receivers. 

130.  Appellate    and    supervisory   ju- 

risdiction under  the  bankrupt 
act. 

131.  Appeals  from  the  United  States 

court  for  China. 

132.  Allowance  of  appeals,  etc. 

133.  Writs  of  error  and  appeals  from 

the  supreme  courts  of  Arizona 
and  New  Mexico. 

134.  Writs  of  error  and  appeals  from 

district  court  for  Alaska  to 
circuit  court  of  appeals  for 
ninth  circuit;  court  may  cer- 
tify questions  to  the  Supreme 
Court. 

135.  Appeals  and  writs  of  error  from 

Alaska;    where  heard. 


Circuits 

Sec.  116.  There  shall  be  nine  judicial  circuits  of  the  United 
States,  constituted  as  follows: 

First.  The  first  circuit  shall  include  the  districts  of  Rhode  Island, 
Massachusetts,  New  Hampshire,  and  Maine. 

Second.  The  second  circuit  shall  include  the  districts  of  Vermont, 
Connecticut,  and  New  York. 

Third.  The  third  circuit  shall  include  the  districts  of  Pennsyl- 
vania, New  Jersey,  and  Delaware. 

Fourth.  The  fourth  circuit  shall  include  the  districts  of  Mary- 
land, Virginia,  West  Virginia,  North  Carolina,  and  South  Carolina. 

Fifth.  The  fifth  circuit  shall  include  the  districts  of  Georgia, 
Florida,  Alabama,  Mississippi,  Louisiana,  and  Texas. 

Sixth.  The  sixth  circuit  shall  include  the  districts  of  Ohio,  Michi- 
gan, Kentucky,  and  Tennessee. 

Seventh.  The  seventh  circuit  shall  include  the  districts  of  Indi- 
ana, Illinois,  and  Wisconsin. 

Eighth.  The  eighth  circuit  shall  include  the  districts  of  Nebraska, 
Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas,  Colorado,  Wyoming, 
North  Dakota,  South  Dakota,  Utah,  and  Oklahoma. 

Ninth.  The  ninth  circuit  shall  include  the  districts  of  California, 
Oregon,  Nevada,  Washington,  Idaho,  Montana,  and  Hawaii. 

Circuit  courts  of  appeals 

Sec.  117.  There  shall  be  in  each  circuit  a  circuit  court  of  appeals, 
which  shall  consist  of  three  judges,  of  whom  two  shall  constitute  a 


THE    JUDICIAL    CODE  647 

quorum,  and  which  shall  be  a  court  of  record,  with  appellate  juris- 
diction, as  hereinafter  limited  and  established. 

Circuit  judges 

Sec.  118.  There  shall  be  in  the  second,  seventh,  and  eighth  cir- 
cuits, respectively,  four  circuit  judges;  in  the  fourth  circuit,  two 
circuit  judges;  and  in  each  of  the  other  four  circuits,  three  circuit 
judges  to  be  appointed  by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate.  They  shall  be  entitled  to  receive  a  salary  at 
the  rate  of  seven  thousand  dollars  a  year  each,  payable  monthly. 
Each  circuit  judge  shall  reside  within  his  circuit.  The  circuit 
judges  in  each  circuit  shall  be  judges  of  the  circuit  court  of  appeals 
in  that  circuit,  and  it  shall  be  the  duty  of  each  circuit  judge  in  each 
circuit  to  sit  as  one  of  the  judges  of  the  circuit  court  of  appeals  in 
that  circuit  from  time  to  time  according  to  law:  Provided,  That 
nothing  in  this  section  shall  be  construed  to  prevent  any  circuit 
judge  holding  district  court  or  serving  in  the  Commerce  Court,  or 
otherwise,  as  provided  for  and  authorized  in  other  sections  of  this 
act  (As  amended  January  13,  1912,  37  Stat  52.) 

Allotment  of  justices  to  the   circuits 

Sec.  119.  The  Chief  Justice  and  associate  justices  of  the  Su- 
preme Court  shall  be  allotted  among  the  circuits  by  an  order  of  the 
court,  and  a  new  allotment  shall  be  made  whenever  it  becomes  neces- 
sary or  convenient  by  reason  of  the  alteration  of  any  circuit,  or  of 
the  new  appointment  of  a  Chief  Justice  or  associate  justice,  or  other- 
wise. If  a  new  allotment  becomes  necessary  at  any  other  time  than 
during  a  term,  it  shall  be  made  by  the  Chief  Justice,  and  shall  be 
binding  until  the  next  term  and  until  a  new  allotment  by  the  court. 
Whenever,  by  reason  of  death  or  resignation,  no  justice  is  allotted 
to  a  circuit,  the  Chief  Justice  may,  until  a  justice  is  regularly  al- 
lotted thereto,  temporarily  assign  a  justice  of  another  circuit  to 
such  circuit 

Chief   Justice   and   associate  justices   of   Supreme   Court,    and 
district  judges,  may  sit  in  circuit  court  of  appeals 

Sec.  120.  The  Chief  Justice  and  the  associate  justices  of  the  Su- 
preme Court  assigned  to  each  circuit,  and  the  several  district  judges 
within  each  circuit,  shall  be  competent  to  sit  as  judges  of  the  circuit 
court  of  appeals  within  their  respective  circuits.  In  case  the  Chief 
Justice  or  an  associate  justice  of  the  Supreme  Court  shall  attend  at 
any  session  of  the  circuit  court  of  appeals,  he  shall  preside.  In  the 
absence  of  such  Chief  Justice,  or  associate  justice,  the  circuit  judges 
in  attendance  upon  the  court  shall  preside  in  the  order  of  the  senior- 
ity of  their  respective  commissions.  In  case  the  full  court  at  any 
time  shall  not  be  made  up  by  the  attendance  of  the  Chief  Justice  or 
the  associate  justice,  and  the  circuit  judges,  one  or  more  district 
judges  within  the  circuit  shall  sit  in  the  court  according  to  such  or- 
der or  provision  among  the  district  Judges  as  either  by  general  or 


648  APPENDIX 

particular  assignment  shall  be  designated  by  the  court:  Provided, 
That  no  judge  before  whom  a  cause  or  question  may  have  been  tried 
or  heard  in  a  district  court,  or  existing  circuit  court,  shall  sit  on  the 
trial  or  hearing  of  such  cause  or  question  in  the  circuit  court  of  ap- 
peals. 

Justices  allotted  to  circuits,  how  designated 

Sec.  121.  The  words  "circuit  justice"  and  "justice  of  a  circuit," 
when  used  in  this  title,  shall  be  understood  to  designate  the  justice 
of  the  Supreme  Court  who  is  allotted  to  any  circuit;  but  the  word 
"judge,"  when  applied  generally  to  any  circuit,  shall  be  understood 
to  include  such  justice. 

Seals,  forms  of  process,  and  rules 

Sec.  122.  Each  of  said  circuit  courts  of  appeals  shall  prescribe  the 
form  and  style  of  its  seal,  and  the  form  of  writs  and  other  process 
and  procedure  as  may  be  conformable  to  the  exercise  of  its  jurisdic- 
tion; and  shall  have  power  to  establish  all  rules  and  regulations  for 
the  conduct  of  the  business  of  the  court  within  its  jurisdiction  as 
conferred  by  law. 

Marshals 

Sec.  123.  The  United  States  marshals  in  and  for  the  several  dis- 
tricts of  said  courts  shall  be  the  marshals  of  said  circuit  courts  of 
appeals,  and  shall  exercise  the  same  powers  and  perform  the  same 
duties,  under  the  regulations  of  the  court,  as  are  exercised  and  per- 
formed by  the  marshal  of  the  Supreme  Court  of  the  United  States, 
so  far  as  the  same  may  be  applicable. 

Clerks 

Sec.  124.  Each  court  shall  appoint  a  clerk,  who  shall  exercise  the 
same  powers  and  perform  the  same  duties  in  regard  to  all  matters 
within  its  jurisdiction,  as  are  exercised  and  performed  by  the  clerk 
of  the  Supreme  Court,  so  far  as  the  same  may  be  applicable. 

Deputy  clerks;   appointment   and  removal 

Sec.  125.  The  clerk  of  the  circuit  court  of  appeals  for  each  circuit 
may,  with  the  approval  of  the  court,  appoint  such  number  of  deputy 
clerks  as  the  court  may  deem  necessary.  Such  deputies  may  be  re- 
moved at  the  pleasure  of  the  clerk  appointing  them,  with  the  approv- 
al of  the  court.  In  case  of  the  death  of  the  clerk  his  deputy  or  depu- 
ties shall,  unless  removed  by  the  court,  continue  in  office  and  per- 
form the  duties  of  the  clerk  in  his  name  until  a  clerk  is  appointed 
and  has  qualified;  and  for  the  defaults  or  misfeasances  in  office  of 
any  such  deputy,  whether  in  the  lifetime  of  the  clerk  or  after  his 
death,  the  clerk  and  Ms  estate  and  the  sureties  on  his  official  bond 
shall  be  liable,  and  his  executor  or  administrator  shall  have  such 
remedy  for  such  defaults  or  misfeasances  committed  after  his  death 
as  the  clerk  would  be  entitled  to  if  the  same  had  occurred  in  hia 
lifetime. 


THE    JUDICIAL    CODE  649 

Terms 

Sec.  126.  A  term  shall- be  held  annually  by  the  circuit  courts  of 
appeals  In  the  several  judicial  circuits  at  the  following  places,  and 
at  such  times  as  may  be  fixed  by  said  courts,  respectively:  In  the 
first  circuit,  In  Boston;  in  the  second  circuit,  in  New  York;  in  the 
third  circuit,  in  Philadelphia ;  in  the  fourth  circuit,  in  Richmond ; 
in  the  fifth  circuit,  in  New  Orleans,  Atlanta,  Fort  Worth,  and  Mont- 
gomery; in  the  sixth  circuit,  in  Cincinnati;  in  the  seventh  circuit,  in 
Chicago;  in  the  eighth  circuit,  in  Saint  Louis,  Denver  or  Cheyenne, 
and  Saint  Paul;  in  the  ninth  circuit,  in  San  Francisco,  and  each 
year  in  two  other  places  in  said  circuit  to  be  designated  by  the  judg- 
es of  said  court;  and  in  each  of  the  above  circuits,  terms  may  be 
held  at  such  other  times  and  in  such  other  places  as  said  courts,  re- 
spectively, may  from  time  to  time  designate:  Provided,  That  terms 
shall  be  held  in  Atlanta  on  the  first  Monday  in  October,  in  Fort 
Worth  on  the  first  Monday  in  November,  in  Montgomery  on  the  third 
Monday  in  October,  in  Denver  or  in  Cheyenne  on  the  first  Monday  in 
September,  and  in  Saint  Paul  on  the  first  Monday  in  May.  All  ap- 
peals, writs  of  error,  and  other  appellate  proceedings  which  may  be 
taken  or  prosecuted  from  the  district  courts  of  the  United  States  in 
the  State  of  Georgia,  in  the  State  of  Texas,  and  in  the  State  of  Ala- 
bama, to  the  circuit  court  of  appeals  for  the  fifth  judicial  circuit 
shall  be  heard  and  disposed  of,  respectively,  by  said  court  at  the 
terms  held  in  Atlanta,  in  Fort  Worth,  and  in  Montgomery,  except 
that  appeals  or  writs  of  error  in  cases  of  injunctions  and  in  all  oth- 
er cases  which,  under  the  statutes  and  rules,  or  in  the  opinion  of 
the  court,  are  entitled  to  be  brought  to  a  speedy  hearing  may  be 
heard  and  disposed  of  wherever  said  court  may  be  sitting.  All  ap- 
peals, writs  of  errors,  and  other  appellate  proceedings  which  may 
hereafter  be  taken  or  prosecuted  from  the  district  court  of  the  Unit- 
ed States  at  Beaumont,  Texas,  to  the  circuit  court  of  appeals  for  the 
fifth  circuit,  shall  be  heard  and  disposed  of  by  the  said  circuit  court 
of  appeals  at  the  terms  of  court  held  at  New  Orleans:  Provided, 
That  nothing  herein  shall  prevent  the  court  from  hearing  appeals  or 
writs  of  error  wherever  the  said  courts  shall  sit,  in  cases  of  injunc- 
tions aud  in  all  other  cases  which,  under  the  statutes  and  the  rules, 
or  in  the  opinion  of  the  court,  are  entitled  to  be  brought  to  a  speedy 
hearing.  All  appeals,  writs  of  error,  and  other  appellate  proceedings 
which  may  be  taken  or  prosecuted  from  the  district  courts  of  the 
United  States  in  the  States  of  Colorado,  Utah,  and  Wyoming,  and 
the  supreme  court  of  the  Territory  of  New  Mexico  to  the  circuit 
court  of  appeals  for  the  eighth  judicial  circuit,  shall  be  heard  and 
disposed  of  by  said  court  at  the  terms  held  either  in  Denver  or  In 
Cheyenne,  except  that  any  case  arising  in  any  of  said  States  or  Ter- 
ritory may,  by  consent  of  all  the  parties,  be  heard  and  disposed  of 
at  a  term  of  said  court  other  than  the  one  held  in  Denver  or  Chey- 
enne. 


650  APPENDIX 

Rooms  for  court,   how  provided 

Sec.  127.  The  marshals  for  the  several  districts  in  which  said  cir- 
cuit courts  of  appeals  may  be  held  shall,  under  the  direction  of  the 
Attorney  General,  and  with  his  approval,  provide  such  rooms  in  the 
public  buildings  of  the  United  States  as  may  be  necessary  for  the 
business  of  said  courts,  and  pay  all  incidental  expenses  of  said  court, 
including  criers,  bailiffs,  and  messengers:  Provided,  That  in  case 
proper  rooms  can  not  be  provided  in  such  buildings,  then  the  mar- 
shals, with  the  approval  of  the  Attorney  General,  may,  from  time  to 
time,  lease  such  rooms  as  may  be  necessary  for  such  courts. 

Jurisdiction;    -when  judgment  final 

Sec.  128.     [See  ante,  p.  471.] 

Appeals  in  proceedings  for  injunctions   and  receivers 

Sec.  129.     [See  ante,  p.  575.] 

Appellate    and   supervisory    jurisdiction   under    the    bankrupt 
act 

Sec.  130.  The  circuit  courts  of  appeals  shall  have  the  appellate 
and  supervisory  jurisdiction  conferred  upon  them  by  the  Act  entitled 
"An  Act  to  establish  a  uniform  system  of  bankruptcy  throughout  the 
United  States,"  approved  July  first,  eighteen  hundred  and  ninety- 
eight,  and  all  laws  amendatory  thereof,  and  shall  exercise  the  same 
in  the  manner  therein  prescribed. 

Appeals  from  the  United  States  court  for  China 

Sec.  131.  The  circuit  court  of  appeals  for  the  ninth  circuit  is  em- 
powered to  hear  and  determine  writs  of  error  and  appeals  from  the 
United  States  court  for  China,  as  provided  in  the  Act  entitled  "An 
Act  creating  a  United  States  court  for  China  and  prescribing  the  ju- 
risdiction thereof,"  approved  June  thirtieth,  nineteen  hundred  and 
six. 

Allowance   of   appeals,   etc. 

Sec.  132.  Any  judge  of  a  circuit  court  of  appeals,  in  respect  of 
cases  brought  or  to  be  brought  before  that  court,  shall  have  the  same 
powers  and  duties  as  to  allowances  of  appeals  and  writs  of  error, 
and  the  conditions  of  such  allowances,  as  by  law  belong  to  the  jus- 
tices or  judges  in  respect  of  other  courts  of  the  United  States,  re- 
spectively. 

Writs  of  error  and  appeals  from  the  supreme  courts  of  Arizo- 
na and  New  Mexico 

Sec.  133.  The  circuit  courts  of  appeals,  in  cases  in  which  their 
judgments  and  decrees  are  made  final  by  this  title,  shall  have  ap- 
pellate jurisdiction,  by  writ  of  error  or  appeal,  to  review  the  judg- 
ments, orders,  and  decrees  of  the  supreme  courts  of  Arizona  and 
New  Mexico,  as  by  this  title  they  may  have  to  review  the  judgments, 
orders,  and  decrees  of  the  district  courts;  and  for  that  purpose  said 


THE    JUDICIAL    CODE  651 

Territories  shall,  by  orders  of  the  Supreme  Court  of  the  United 
States,  to  be  made  from  time  to  time,  be  assigned  to  particular  cir- 
cuits. 

Writs  of  error  and  appeals  from  district  court  for  Alaska  to 
circuit  court  of  appeals  for  ninth  circuit;  court  may 
certify  questions  to  the  Supreme  Court 

Sec.  134.  In  all  cases  other  than  those  in  which  a  writ  of  error  or 
appeal  will  lie  direct  to  the  Supreme  Court  of  the  United  States  as 
provided  in  section  two  hundred  and  forty-seven,  in  which  the 
amount  involved  or  the  value  of  the  subject-matter  in  controversy 
shall  exceed  five  hundred  dollars,  and  in  all  criminal  cases,  writs  of 
error  and  appeals  shall  lie  from  the  district  court  for  Alaska  or  from 
any  division  thereof,  to  the  circuit  court  of  appeals  for  the  ninth 
circuit,  and  the  judgments,  orders,  and  decrees  of  said  court  shall 
be  final  in  all  such  cases.  But  whenever  such  circuit  court  of  appeals 
may  desire  the  instruction  of  the  Supreme  Court  of  the  United  States 
upon  any  question  or  proposition  of  law  which  shall  have  arisen  in 
any  such  case,  the  court  may  certify  such  question  or  proposition  to 
the  Supreme  Court,  and  thereupon  the  Supreme  Court  shall  give  its 
instruction  upon  the  question  or  proposition  certified  to  it,  and  its  in- 
structions shall  be  binding  upon  the  circuit  court  of  appeals. 

Appeals  and  writs  of   error  from  Alaska;   where  heard 

Sec.  135.  All  appeals,  and  writs  of  error,  and  other  cases,  coming 
from  the  district  court  for  the  district  of  Alaska  to  the  circuit  court 
of  appeals  for  the  ninth  circuit,  shall  be  entered  upon  the  docket  and 
heard  at  San  Francisco,  California,  or  at  Portland,  Oregon,  or  at 
Seattle,  Washington,  as  the  trial  court  before  whom  the  case  was 
tried  below  shall  fix  and  determine:  Provided,  That  at  any  time  be- 
fore the  hearing  of  any  appeal,  writ  of  error,  or  other  case,  the 
parties  thereto,  through  their  respective  attorneys,  may  stipulate  at 
which  of  the  above-named  places  the  same  shall  be  heard,  in  which 
case  the  case  shall  be  remitted  to  and  entered  upon  the  docket  at  the 
place  so  stipulated  and  shall  be  heard  there. 


CHAPTER  SEVEN 
THE  COURT  OF  CLAIMS 


Sec. 

136.  Appointment,   oath,    and   salary 

of  judges. 

137.  Seal. 

138.  Session;    quorum. 

139.  Officers  of  the  court. 

140.  Salaries  of  officers. 

141.  Clerk's  bond. 

142.  Contingent  fund. 


Sec. 

143.  Reports  to  Congress;    copies  for 

departments,  etc. 

144.  Members    of    Congress    not    to 

practice  in  the  court. 

145.  Jurisdiction. 

Par.    1.  Claims     against     the 

United  States. 
2.  Set-offs. 
8.  Disbursing  officers. 


652 


APPENDIX 


Sec. 

146.  Judgments  for  set-off  or  coun- 

terclaims;   how  enforced. 

147.  Decree  on  accounts  of  disburs- 

ing officers. 

148.  Claims  referred  by  departments. 

149.  Procedure  in  cases  transmitted 

by  departments. 

150.  Judgments  in  cases  transmitted 

by  departments;    how  paid. 

151.  Either  House  of  Congress   may 

refer  certain  claims  to  court. 

152.  Costs  may  be  allowed  prevailing 

party. 

153.  Claims  growing  out  of  treaties 

not  cognizable  therein. 

154.  Claims  pending  in  other  courts. 

155.  Aliens. 

156.  All  claims  to  be  filed  within  six 

years;    exceptions. 

157.  Rules  of  practice;    may  punish 

contempts. 

158.  Oaths  and  acknowledgments. 

159.  Petitions  and  verification. 

160.  Petition  dismissed,  when. 

161.  Burden    of   proof   and    evidence 

as  to  loyalty. 

162.  Claims     for     proceeds     arising 

from  sales  of  abandoned  prop- 
erty. 

163.  Commissioners    to    take    testi- 

mony. 

164.  Power  to  call  upon  departments 

for  information. 

165.  When     testimony     not     to     be 

taken. 

166.  Examination  of  claimant. 


Sec. 

167.  Testimony;   where  taken. 

168.  Witnesses     before    commission- 

ers. 

169.  Cross-examinations. 

170.  Witnesses;    how  sworn. 

171.  Fees  of  commissioners,  by  whom 

paid. 

172.  Claims  forfeited  for  fraud. 

173.  Claims    under   act   of    June    16, 

1874. 

174.  New  trial  on  motion  of  claim- 

ant. 

175.  New  trial  on  motion  of  United 

States. 

176.  Cost  of  printing  record. 

177.  No  interest  on  claims. 

178.  Effect  of  payment  of  judgment. 

179.  Final  judgments  a  bar. 

180.  Debtors    to    the    United    States 

may  have  amount  due  ascer- 
tained. 

181.  Appeals. 

182.  Appeals  in  Indian  cases. 

183.  Attorney     General's     report    to 

Congress. 

184.  Loyalty  a  jurisdictional  fact  in 

certain  cases. 

185.  Attorney  General  to  appear  for 

the  defense. 

186.  Persons   not  to  be   excluded  as 

witnesses  on  account  of  color 
or  because  of  Interest;  plain- 
tiff may  be  witness  for  Gov- 
ernment. 

187.  Reports  of  court  to  Congress. 


Appointment,  oath,  and  salary  of  judges 

Sec.  136.  The  Court  of  Claims,  established  by  the  Act  of  Febru- 
ary twenty-fourth,  eighteen  hundred  and  fifty-five,  shall  be  contin- 
ued. It  shall  consist  of  a  chief  justice  and  four  judges,  who  shall  be 
appointed  by  the  President,  by  and  with  the  advice  and  consent  of 
the  Senate,  and  hold  their  offices  during  good  behavior.  Each  of 
them  shall  take  an  oath  to  support  the  Constitution  of  the  United 
States,  and  to  discharge  faithfully  the  duties  of  his  office.  The  chief 
justice  shall  be  entitled  to  receive  an  annual  salary  of  six  thousand 
five  hundred  dollars,  and  each  of  the  other  judges  an  annual  salary 
of  six  thousand  dollars,  payable  monthly,  from  the  Treasury. 

Seal 

Sec.  137.  The  Court  of  Claims  shall  have  a  seal,  with  such  device 
as  it  may  order. 

Session;    quorum 

Sec.  138.  The  Court  of  Claims  shall  hold  one  annual  session  at 
the  city  of  Washington,  beginning  on  the  first  Monday  in  December 


THE    JUDICIAL    CODE  653 

and  continuing  as  long  as  may  be  necessary  for  the  prompt  disposi- 
tion of  the  business  of  the  court.  Any  three  of  the  judges  of  said 
court  shall  constitute  a  quorum,  and  may  hold  a  court  for  the  trans- 
action of  business:  Provided,  That  the  concurrence  of  three  judges 
shall  be  necessary  to  the  decision  of  any  case. 

Officers  of  the  court 

Sec.  139.  The  said  court  shall  appoint  a  chief  clerk,  an  assistant 
clerk,  if  deemed  necessary,  a  bailiff,  and  a  chief  messenger.  The 
clerks  shall  take  an  oath  for  the  faithful  discharge  of  their  duties, 
and  shall  be  under  the  direction  of  the  court  in  the  performance 
thereof;  and  for  misconduct  or  incapacity  they  may  be  removed  by 
it  from  office ;  but  the  court  shall  report  such  removals,  with  the 
cause  thereof,  to  Congress,  if  in  session,  or  if  not,  at  the  next  ses- 
sion. The  bailiff  shall  hold  his  office  for  a  term  of  four  years,  unless 
sooner  removed  by  the  court  for  cause. 

Salaries  of  officers 

Sec.  140.  The  salary  of  the  chief  clerk  shall  be  three  thousand 
five  hundred  dollars  a  year;  of  the  assistant  clerk  two  thousand  five 
hundred  dollars  a  year;  of  the  bailiff  one  thousand  five  hundred 
dollars  a  year,  and  of  the  chief  messenger  one  thousand  dollars  a 
year,  payable  monthly  from  the  Treasury. 

Clerk's  bond 

Sec.  141.  The  chief  clerk  shall  give  bond  to  the  United  States  in 
such  amount,  in  such  form,  and  with  such  security  as  shall  be  ap- 
proved by  the  Secretary  of  the  Treasury. 

Contingent  fund 

Sec.  142.  The  said  clerk  shall  have  authority  when  he  has  given 
bond  as  provided  in  the  preceding  section,  to  disburse,  under  the  di- 
rection of  the  court,  the  contingent  fund  which  may  from  time  to 
time  be  appropriated  for  its  use;  and  his  accounts  shall  be  settled  by 
the  proper  accounting  officers  of  the  Treasury  in  the  same  way  as 
the  accounts  of  other  disbursing  agents  of  the  Government  are  set- 
tled. 

Reports  to  Congress;    copies  for  departments,  etc. 

Sec.  143.  On  the  first  day  of  every  regular  session  of  Congress, 
the  clerk  of  the  Court  of  Claims  shall  transmit  to  Congress  a  full 
and  complete  statement  of  all  the  judgments  rendered  by  the  court 
during  the  previous  year,  stating  the  amounts  thereof  and  the  par- 
ties in  whose  favor  they  were  rendered,  together  with  a  brief  synop- 
sis of  the  nature  of  the  claims  upon  which  they  were  rendered.  At 
the  end  of  every  term  of  the  court  he  shall  transmit  a  copy  of  its  de- 
cisions to  the  heads  of  departments;  to  the  Solicitor,  the  Comptrol- 
ler, and  the  Auditors  of  the  Treasury;  to  the  Commissioner  of  the 
General  Land  Office  and  of  Indian  Affairs;  to  the  chiefs  of  bureaus, 


654 


APPENDIX 


and  to  other  officers  charged  with  the  adjustment  of  claims  against 
the  United  States. 

Members  of  Congress  not  to  practice  in  the   court 

Sec.  144.  Whoever,  being  elected  or  appointed  a  Senator,  Member 
of,  or  Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after 
his  election  or  appointment,  and  either  before  or  after  he  has  quali- 
fied, and  during  his  continuance  in  office,  practice  in  the  Court  of 
Claims,  shall  be  fined  not  more  than  ten  thousand  dollars  and  im- 
prisoned not  more  than  two  years ;  and  shall,  moreover,  thereafter 
be  incapable  of  holding  any  office  of  honor,  trust,  or  profit  under  the 
Government  of  the  United  States. 

Jurisdiction 

Sec.  145.  The  Court  of  Claims  shall  have  jurisdiction  to  hear  and 
determine  the  following  matters: 

Claims  against  the  United  States 

First.  All  claims  (except  for  pensions)  founded  upon  the  Consti- 
tution of  the  United  States  or  any  law  of  Congress,  upon  any  regula- 
tion of  an  Executive  Department,  upon  any  contract,  express  or  im- 
plied, with  the  Government  of  the  United  States,  or  for  damages,  liq- 
uidated or  unliquidated,  in  cases  not  sounding  in  tort,  in  respect  of 
which  claims  the  party  would  be  entitled  to  redress  against  the  Unit- 
ed States  either  in  a  court  of  law,  equity,  or  admiralty  if  the  United 
States  were  suable:  Provided,  however,  That  nothing  in  this  section 
shall  be  construed  as  giving  to  the  said  court  jurisdiction  to  hear 
and  determine  claims  growing  out  of  the  late  civil  war,  and  common- 
ly known  as  "war  claims,"  or  to  hear  and  determine  other  claims 
which,  prior  to  March  third,  eighteen  hundred  and  eighty-seven,  had 
been  rejected  or  reported  on  adversely  by  any  court,  department,  or 
commission  authorized  to  hear  and  determine  the  same. 

Set-offs 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether 
liquidated  or  unliquidated,  or  other  demands  whatsoever  on  the  part 
of  the  Government  of  the  United  States  against  any  claimant  against 
the  Government  in  said  court:  Provided,  That  no  suit  against  the 
Government  of  the  United  States,  brought  by  any  officer  of  the  Unit- 
ed States  to  recover  fees  for  services  alleged  to  have  been  performed 
for  the  United  States,  shall  be  allowed  under  this  chapter  until  an 
account  for  said  fees  shall  have  been  rendered  and  finally  acted  upon 
as  required  by  law,  unless  the  proper  accounting  officer  of  the  Treas- 
ury fails  to  act  finally  thereon  within  six  months  after  the  account  is 
received  in  said  office. 

Disbnrsing  officers 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary 
of  subsistence,  or  other  disbursing  officer  of  the  United  States,  or 


THE    JUDICIAL    CODE  655 

of  his  administrators  or  executors,  for  relief  from  responsibility  on 
account  of  loss  by  capture  or  otherwise,  while  in  the  line  of  his 
duty,  of  Government  funds,  vouchers,  records,  or  papers  in  his 
charge,  and  for  which  such  officer  was  and  is  held  responsible. 

Judgments  for  set-off  or  counterclaims;    how  enforced 

Sec.  146.  Upon  the  trial  of  any  cause  in  which  any  set-off,  coun- 
terclaim, claim  for  damages,  or  other  demand  is  set  up  on  the  part 
of  the  Government  against  any  person  making  claim  against  the 
Government  in  said  court,  the  court  shall  hear  and  determine  such 
claim  or  demand  both  for  and  against  the  Government  and  claimant; 
and  if  upon  the  whole  case  it  finds  that  the  claimant  is  indebted  to 
the  Government  it  shall  render  judgment  to  that  effect,  and  such 
judgment  shall  be  final,  with  the  right  of  appeal,  as  in  other  cases 
provided  for  by  law.  Any  transcript  of  such  judgment,  filed  in  the 
clerk's  office  of  any  district  court,  shall  be  entered  upon  the  records 
thereof,  and  shall  thereby  become  and  be  a  judgment  of  such  court 
and  be  enforced  as  other  judgments  in  such  court  are  enforced. 

Decree  on  accounts  of  disbursing  officers 

Sec.  147.  Whenever  the  Court  of  Claims  ascertains  the  facts  of 
any  loss  by  any  paymaster,  quartermaster,  commissary  of  subsist- 
ence, or  other  disbursing  officer,  in  the  cases  hereinbefore  provided, 
to  have  been  without  fault  or  negligence  on  the  part  of  such  officer,  it 
shall  make  a  decree  setting  forth  the  amount  thereof,  and  upon  such 
decree  the  proper  accounting  officers  of  the  Treasury  shall  allow  to 
such  officer  the  amount  so  decreed  as  a  credit  in  the  settlement  of 
his  accounts. 

Claims  referred  by  departments 

Sec.  148.  When  any  claim  or  matter  is  pending  in  any  of  the  ex- 
ecutive departments  which  involves  controverted  questions  of  fact  or 
law,  the  head  of  such  department  may  transmit  the  same,  with  the 
vouchers,  papers,  documents  and  proofs  pertaining  thereto,  to  the 
Court  of  Claims  and  the  same  shall  be  there  proceeded  in  under  such 
rules  as  the  court  may  adopt.  When  the  facts  and  conclusions  of  law 
shall  have  been  found,  the  court  shall  report  its  findings  to  the  de- 
partment by  which  it  was  transmitted  for  its  guidance  and  action: 
Provided,  however,  That  if  it  shall  have  been  transmitted  with  the 
consent  of  the  claimant,  or  if  it  shall  appear  to  the  satisfaction  of 
the  court  upon  the  facts  established,  that  under  existing  laws  or  the 
provisions  of  this  chapter  it  has  jurisdiction  to  render  judgment  or 
decree  thereon,  it  shall  proceed  to  do  so,  in  the  latter  case  giving  to 
either  party  such  further  opportunity  for  hearing  as  in  its  judgment 
justice  shall  require,  and  shall  report  its  findings  therein  to  the  de- 
partment by  which  the  same  was  referred  to  said  court  The  Secre- 
tary of  the  Treasury  may,  upon  the  certificate  of  any  auditor,  or  of 
the  Comptroller  of  the  Treasury,  direct  any  claim  or  matter,  of 


656  APPENDIX 

which,  by  reason  of  the  subject  matter  or  character,  the  said  court 
might  under  existing  laws,  take  jurisdiction  on  the  voluntary  action 
of  the  claimant,  to  be  transmitted,  with  all  the  vouchers,  papers, 
documents  and  proofs  pertaining1  thereto,  to  the  said  court  for  trial 
and  adjudication. 

Procedure  in  cases  transmitted  by  departments 

Sec.  149.  All  cases  transmitted  by  the  head  of  any  department,  or 
upon  the  certificate  of  any  auditor,  or  of  the  Comptroller  of  the 
Treasury,  according  to  the  provisions  of  the  preceding  section,  shall 
be  proceeded  in  as  other  cases  pending  in  the  Court  of  Claims,  and 
shall,  in  all  respects,  be  subject  to  the  same  rules  and  regulations. 

Judgments  in  cases  transmitted  by  departments;    how  paid 

Sec.  150.  The  amount  of  any  final  judgment  or  decree  rendered  in 
favor  of  the  claimant,  in  any  case  transmitted  to  the  Court  of  Claims 
under  the  two  preceding  sections,  shall  be  paid  out  of  any  specific 
appropriation  applicable  to  the  case,  if  any  such  there  be;  and 
where  no  such  appropriation  exists,  the  judgment  or  decree  shall  be 
paid  in  the  same  manner  as  other  judgments  of  the  said  court. 

Either  House  of  Congress  may  refer  certain  claims  to  court 

Sec.  151.  Whenever  any  bill,  except  for  a  pension,  is  pending  in 
either  House  of  Congress  providing  for  the  payment  of  a  claim 
against  the  United  States,  legal  or  equitable,  or  for  a  grant,  gift,  or 
bounty  to  any  person,  the  House  in  which  such  bill  is  pending  may, 
for  the  investigation  and  determination  of  facts,  refer  the  same  to 
the  Court  of  Claims,  which  shall  proceed  with  the  same  in  accord- 
ance with  such  rules  as  it  may  adopt  and  report  to  such  House  the 
facts  in  the  case  and  the  amount,  where  the  same  can  be  liquidated, 
including  any  facts  bearing  upon  the  question  whether  there  has 
been  delay  or  laches  in  presenting  such  claim  or  applying  for  such 
grant,  gift,  or  bounty,  and  any  facts  bearing  upon  the  question 
whether  the  bar  of  any  statute  of  limitation  should  be  removed  or 
which  shall  be  claimed  to  excuse  the  claimant  for  not  having  resort- 
ed to  any  established  legal  remedy,  together  with  such  conclusions  as 
shall  be  sufficient  to  inform  Congress  of  the  nature  and  character  of 
the  demand,  either  as  a  claim,  legal  or  equitable,  or  as  a  gratuity 
against  the  United  States,  and  the  amount,  if  any,  legally  or  equi- 
tably due  from  the  United  States  to  the  claimant:  Provided,  how- 
ever, That  if  it  shall  appear  to  the  satisfaction  of  the  court  upon  the 
facts  established,  that  under  existing  laws  or  the  provisions  of  this 
chapter,  the  subject  matter  of  the  bill  is  such  that  it  has  jurisdic- 
tion to  render  judgment  or  decree  thereon,  it  shall  proceed  to  do  so, 
giving  to  either  party  such  further  opportunity  for  hearing  as  in  its 
judgment  justice  shall  require,  and  it  shall  report  its  proceedings 
therein  to  the  House  of  Congress  by  which  the  same  was  referred  to 
said  court. 


THE    JUDICIAL    CODE  657 

Costs  may  be  allowed  prevailing  party 

Sec.  152.  If  the  Government  of  the  United  States  shall  put  in  Is- 
sue the  right  of  the  plaintiff  to  recover,  the  court  may,  in  its  dis- 
cretion, allow  costs  to  the  prevailing  party  from  the  time  of  joining 
such  issue.  Such  costs,  however,  shall  include  only  what  is  actually 
incurred  for  witnesses,  and  for  summoning  the  same,  and  fees  paid 
to  the  clerk  of  the  court. 

Claims  growing  ont  of  treaties  not  cognizable  therein 

Sec.  153.  The  jurisdiction  of  the  said  court  shall  not  extend  to 
any  claim  against  the  Government  not  pending  therein  on  December 
first,  eighteen  hundred  and  sixty-two,  growing  out  of  or  dependent 
on  any  treaty  stipulation  entered  into  with  foreign  nations  or  with 
the  Indian  tribes. 

Claims  pending  in  other  courts 

Sec.  154.  No  person  shall  file  or  prosecute  in  the  Court  of  Claims, 
or  in  the  Supreme  Court  on  appeal  therefrom,  any  claim  for  or  in 
respect  to  which  he  or  any  assignee  of  his  has  pending  in  any  other 
court  any  suit  or  process  against  any  person  who,  at  the  time  when 
the  cause  of  action  alleged  in  such  suit  or  process  arose,  was,  in 
respect  thereto,  acting  or  professing  to  act,  mediately  or  immediate- 
ly, under  the  authority  of  the  United  States. 
Aliens 

Sec.  155.  Aliens  who  are  citizens  or  subjects  of  any  government 
which  accords  to  citizens  of  the  United  States  the  right  to  prosecute 
claims  against  such  government  in  its  courts,  shall  have  the  privilege 
of  prosecuting  claims  against  the  United  States  in  the  Court  of 
Claims,  whereof  such  court,  by  reason  of  their  subject  matter  and 
character,  might  take  jurisdiction. 

All  claims  to  be  filed  within  six  years;    exceptions 

Sec.  156.  Every  claim  against  the  United  States  cognizable  by 
the  Court  of  Claims,  shall  be  forever  barred  unless  the  petition  set- 
ting forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted  to 
it  by  the  Secretary  of  the  Senate  or  the  Clerk  of  the  House  of  Rep- 
resentatives, as  provided  by  law,  within  six  years  after  the  claim 
first  accrues:  Provided,  That  the  claims  of  married  women,  first  ac- 
crued during  marriage,  of  persons  under  the  age  of  twenty-one  years, 
first  accrued  during  minority,  and  of  idiots,  lunatics,  insane  persons, 
and  persons  beyond  the  seas  at  the  time  the  claim  accrued,  entitled 
to  the  claim,  shall  not  be  barred  if  the  petition  be  filed  in  the  court 
or  transmitted,  as  aforesaid,  within  three  years  after  the  disability 
has  ceased;  but  no  other  disability  than  those  enumerated  shall  pre- 
vent any  claim  from  being  barred,  nor  shall  any  of  the  said  disabi 
ities  operate  cumulatively. 

Rules  of  practice;    may  punish  contempts 

Sec.  157.    The  said  court  shall  have  power  to  establish  rules  for 
Its  government  and  for  the  regulation  of  practice  therein,  and  it  may 
HUGHES  FED.PK.(2o  ED.) — 42 


658  APPENDIX 

punish  for  contempt  in  the  manner  prescribed  by  the  common  law, 
may  appoint  commissioners,  and  may  exercise  such  powers  as  are 
necessary  to  carry  into  effect  the  powers  granted  to  it  by  law. 

Oaths  and  acknowledgments 

Sec.  158.  The  judges  and  clerks  of  said  court  may  administer 
oaths  and  affirmations,  take  acknowledgments  of  instruments  in 
writing,  and  give  certificates  of  the  same. 

Petitions  and  verification 

Sec.  159.  The  claimant  shall  in  all  cases  fully  set  forth  in  his  peti- 
tion the  claim,  the  action  thereon  in  Congress  or  by  any  of  the  de- 
partments, if  such  action  has  been  had,  what  persons  are  owners 
thereof  or  interested  therein,  when  and  upon  what  consideration 
such  persons  became  so  interested;  that  no  assignment  or  transfer 
of  said  claim  or  of  any  part  thereof  or  interest  therein  has  been 
made,  except  as  stated  in  the  petition ;  that  said  claimant  is  justly 
entitled  to  the  amount  therein  claimed  from  the  United  States  after 
allowing  all  just  credits  and  offsets;  that  the  claimant  and,  where 
the  claim  has  been  assigned,  the  original  and  every  prior  owner 
thereof,  if  a  citizen,  has  at  all  times  borne  true  allegiance  to  the 
Government  of  the  United  States,  and,  whether  a  citizen  or  not,  has 
not  in  any  way  voluntarily  aided,  abetted,  or  given  encouragement  to 
rebellion  against  the  said  Government,  and  that  he  believes  the  facts 
as  stated  in  the  said  petition  to  be  true.  The  said  petition  shall  be 
verified  by  the  affidavit  of  the  claimant,  his  agent  or  attorney. 

Petition  dismissed,  when 

Sec.  160.  The  said  allegations  as  to  true  allegiance  and  voluntary 
aiding,  abetting,  or  giving  encouragement  to  rebellion  against  the 
Government  may  be  traversed  by  the  Government,  and  if  on  the  trial 
such  issues  shall  be  decided  against  the  claimant,  nis  petition  shall 
be  dismissed. 

Bnrden  of  proof  and  evidence  as  to  loyalty 

Sec.  161.  Whenever  it  is  material  in  any  claim  to  ascertain  wheth- 
er any  person  did  or  did  not  give  any  aid  or  comfort  to  forces  or 
government  of  the  late  Confederate  States  during  the  Civil  War,  the 
claimant  asserting  the  loyalty  of  any  such  person  to  the  United 
States  during  such  Civil  War  shall  be  required  to  prove  affirmatively 
that  such  person  did,  during  said  Civil  War,  consistently  adhere  to 
the  United  States  and  did  give  no  aid  or  comfort  to  persons  engaged 
in  said  Confederate  service  in  said  Civil  War. 

Claims  for  proceeds  arising  from  sales  of  abandoned  property 

Sec.  162.  The  Court  of  Claims  shall  have  jurisdiction  to  hear  and 
determine  the  claims  of  those  whose  property  was  taken  subsequent 
to  June  the  first,  eighteen,  hundred  and  sixty-five,  under  the  provi- 
sions of  the  Act  of  Congress  approved  March  twelfth,  eighteen  hun- 


THE    JUDICIAL    CODE  659 

dred  and  sixty-three,  entitled  "An  Act  to  provide  for  the  collection 
of  abandoned  property  and  for  the  prevention  of  frauds  in  insur- 
rectionary districts  within  the  United  States,"  and  Acts  amendatory 
thereof  where  the  property  so  taken  was  sold  and  the  net  proceeds 
thereof  were  placed  in  the  Treasury  of  the  United  States;  and  the 
Secretary  of  the  Treasury  shall  return  said  net  proceeds  to  the  own- 
ers thereof,  on  the  judgment  of  said  court,  and  full  jurisdiction  is 
given  to  said  court  to  adjudge  said  claims,  any  statutes  of  limita- 
tions to  the  contrary  notwithstanding. 

Commissioners  to  take  testimony 

Sec.  163.  The  Court  of  Claims  shall  have  power  to  appoint  com- 
missioners 10  take  testimony  to  be  used  in  the  investigation  of  claims 
which  come  before  it,  to  prescribe  the  fees  which  they  shall  receive 
for  their  services,  and  to  issue  commissions  for  the  taking  of  such 
testimony,  whether  taken  at  the  instance  of  the  claimant  or  of  the 
United  States. 

Power  to  call  upon  departments  for  information 

Sec.  164.  The  said  court  shall  have  power  to  call  upon  any  of  the 
departments  for  any  information  or  papers  it  may  deem  necessary, 
and  shall  have  the  use  of  all  recorded  and  printed  reports  made  by 
the  committees  of  each  House  of  Congress,  when  deemed  necessary 
in  the  prosecution  of  its  business.  But  the  head  of  any  department 
may  refuse  and  omit  to  comply  with  any  call  for  information  or  pa- 
pers when,  in  his  opinion,  such  compliance  would  be  injurious  to  the 
public  interest. 

When  testimony  not  to  be   taken 

Sec.  165.  When  it  appears  to  the  court  in  any  case  that  the  facts 
set  forth  in  the  petition  of  the  claimant  do  not  furnish  any  ground 
for  relief,  it  shall  not  authorize  the  taking  of  any  testimony  therein. 

Examination  of   claimant 

Sec.  166.  The  court  may,  at  the  instance  of  the  attorney  or  solici- 
tor appearing  in  behalf  of  the  United  States,  make  an  order  in  any 
case  pending  therein,  directing  any  claimant  in  such  case  to  appear, 
upon  reasonable  notice,  before  any  commissioner  of  the  court  and  be 
examined  on  oath  touching  any  or  all  matters  pertaining  to  said 
claim.  Such  examination  shall  be  reduced  to  writing  by  the  said 
commissioner,  and  be  returned  to  and  filed  in  the  court,  and  may,  at 
the  discretion  of  the  attorney  or  solicitor  of  the  United  States  ap- 
pearing in  the  case,  be  read  and  used  as  evidence  on  the  trial  there- 
of. And  if  any  claimant,  after  such  order  is  made  and  due  and  rea- 
sonable notice  thereof  is  given  to  him,  fails  to  appear,  or  refuses  to 
testify  or  answer  fully  as  to  all  matters  within  his  knowledge  mate- 
rial to  the  issue,  the  court  may,  in  its  discretion,  order  that  the  said 
cause  shall  not  be  brought  forward  for  trial  until  he  shall  have  fully 
complied  with  the  order  of  the  court  in  the  premises. 


660  APPENDIX 

Testimony;     where   taken 

Sec.  167.  The  testimony  in  cases  pending  before  the  Court  of 
Claims  shall  be  taken  in  the  county  where  the  witness  resides,  when 
the  same  can  be  conveniently  done. 

Witnesses   before    commissioners 

Sec.  168.  The  Court  of  Claims  may  issue  subpoenas  to  require  the 
attendance  of  witnesses  in  order  to  be  examined  before  any  person 
commissioned  to  take  testimony  therein.  Such  subpoenas  shall  have 
the  same  force  as  if  issued  from  a  district  court,  and  compliance 
therewith  shall  be  compelled  under  such  rules  and  orders  as  the 
court  shall  establish. 

Cr  os  s-examinations 

Sec.  169.  In  taking  testimony  to  be  used  in  support  of  any  claim, 
opportunity  shall  be  given  to  the  United  States  to  file  interrogatories, 
or  by  attorney  to  examine  witnesses,  under  such  regulations  as  said 
court  shall  prescribe;  and  like  opportunity  shall  be  afforded  the 
claimant,  in  cases  where  testimony  is  taken  on  behalf  of  the  United 
States,  under  like  regulations. 

Witnesses;    how  sworn 

Sec.  170.  The  commissioner  taking  testimony  to  be  used  in  the 
Court  of  Claims  shall  administer  an  oath  or  affirmation  to  the  wit- 
nesses brought  before  him  for  examination. 

Fees  of  commissioners,  by  whom  paid 

Sec.  171.  When  testimony  is  taken  for  the  claimant,  the  fees  of 
the  commissioner  before  whom  it  is  taken,  and  the  cost  of  the  com- 
mission and  notice,  shall  be  paid  by  such  claimant;  and  when  it  is 
taken  at  the  instance  of  the  Government,  such  fees  shall  be  paid 
out  of  the  contingent  fund  provided  for  the  Court  of  Claims,  or  other 
appropriation  made  by  Congress  for  that  purpose. 

Claims  forfeited  for  fraud 

Sec.  172.  Any  person  who  corruptly  practices  or  attempts  to  prac- 
tice any  fraud  against  the  United  States  in  the  proof,  statement,  es- 
tablishment, or  allowance  of  any  claim  or  of  any  part  of  any  claim 
against  the  United  States  shall,  ipso  facto,  forfeit  the  same  to  the 
Government;  and  it  shall  be  the  duty  of  the  Court  of  Claims,  in 
such  cases,  to  find  specifically  that  such  fraud  was  practiced  or  at- 
tempted to  be  practiced,  and  thereupon  to  give  judgment  that  such 
claim  is  forfeited  to  the  Government,  and  that  the  claimant  be  for- 
ever barred  from  prosecuting  the  same. 

Claims  under  act  of  June    16,   1874 

Sec.  173.  No  claim  shall  be  allowed  by  the  accounting  officers  un- 
der the  provisions  of  the  Act  of  Congress  approved  June  sixteenth, 
eighteen  hundred  and  seventy-four,  or  by  the  Court  of  Claims,  or  by 
Congress,  to  any  person  where  such  claimant,  or  those  under  whom 


THE    JUDICIAL    CODE  661 

he  claims,  shall  willfully,  knowingly,  and  with  intent  to  defraud  the 
United  States,  have  claimed  more  than  was  justly  due  in  respect  of 
such  claim,  or  presented  any  false  evidence  to  Congress,  or  to  any 
department  or  court,  in  support  thereof. 

New   trial   on    motion    of   claimant 

Sec.  174.  "When  judgment  is  rendered  against  any  claimant,  the 
court  may  grant  a  new  trial  for  any  reason  which,  by  the  rules  of 
common  law  or  chancery  in  suits  between  individuals,  would  furnish 
sufficient  ground  for  granting  a  new  trial. 

New   trial  on   motion  of  United  States 

Sec.  175.  The  Court  of  Claims,  at  any  time  while  any  claim  is 
pending  before  it,  or  on  appeal  from  it,  or  within  two  years  next 
after  the  final  disposition  of  such  claim,  may,  on  motion,  on  behalf 
of  the  United  States,  grant  a  new  trial  and  stay  the  payment  of  any 
judgment  therein,  upon  such  evidence,  cumulative  or  otherwise,  as 
shall  satisfy  the  court  that  any  fraud,  wrong,  or  injustice  in  the 
premises  has  been  done  to  the  United  States;  but  until  an  order  is 
made  staying  the  payment  of  a  judgment,  the  same  shall  be  payable 
and  paid  as  now  provided  by  law. 

Cost  of  printing  record 

Sec.  176.  There  shall  be  taxed  against  the  losing  party  in  each 
and  every  cause  pending  in  the  Court  of  Claims  the  cost  of  printing 
the  record  in  such  case,  which  shall  be  collected,  except  when  the 
judgment  is  against  the  United  States,  by  the  clerk  of  said  court  and 
paid  into  the  Treasury  of  the  United  States. 

No  interest  on  claims 

Sec.  177.  No  interest  shall  be  allowed  on  any  claim  up  to  the  time 
of  the  rendition  of  judgment  thereon  by  the  Court  of  Claims,  unless 
upon  a  contract  expressly  stipulating  for  the  payment  of  interest. 

Effect  of  payment  of  judgment 

Sec.  178.  The  payment  of  the  amount  due  by  any  judgment  of  the 
Court  of  Claims,  and  of  any  interest  thereon  allowed  by  law,  as  pro- 
vided by  law,  shall  be  a  full  discharge  to  the  United  States  of  all 
claim  and  demand  touching  any  of  the  matters  involved  in  the  con- 
troversy. 

Final  judgments  a  bar 

Sec.  179.  Any  final  judgment  against  the  claimant  on  any  claim 
prosecuted  as  provided  in  this  chapter  shall  forever  bar  any  further 
claim  or  demand  against  the  United  States  arising  out  of  the  matters 
involved  in  the  controversy. 

Debtors    to    the   United   States    may   have   amount    due   ascer- 
tained 

Sec  180.  Whenever  any  person  shall  present  his  petition  to  the 
Court  of  Claims  alleging  that  he  is  or  has  been  indebted  to  the  Unit- 


€62 


APPENDIX 


ed  States  as  an  officer  or  agent  thereof,  or  by  virtue  of  any  contract 
therewith,  or  that  he  is  the  guarantor,  or  surety,  or  personal  repre- 
sentative of  any  officer  or  agent  or  contractor  so  indebted,  or  that  he 
or  the  person  for  whom  he  is  such  surety,  guarantor,  or  personal  rep- 
resentative has  held  any  office  or  agency  under  the  United  States,  or 
entered  into  any  contract  therewith,  under  which  it  may  be  or  has 
been  claimed  that  an  indebtedness  to  the  United  States  had  arisen 
and  exists,  and  that  he  or  the  person  he  represents  has  applied  to  the 
proper  department  of  the  Government  requesting  that  the  account 
of  such  office,  agency,  or  indebtedness  may  be  adjusted  and  settled, 
and  that  three  years  have  elapsed  from  the  date  of  such  application, 
and  said  account  still  remains  unsettled  and  unadjusted,  and  that  no 
suit  upon  the  same  has  been  brought  by  the  United  States,  said  court 
shall,  due  notice  first  being  given  to  the  head  of  said  department  and 
to  the  Attorney  General  of  the  United  States,  proceed  to  hear  the 
parties  and  to  ascertain  the  amount,  if  any,  due  the  United  States  on 
said  account.  The  Attorney  General  shall  represent  the  United 
States  at  the  hearing  of  said  cause.  The  court  may  postpone  the 
same  from,  time  to  time  whenever  justice  shall  require.  The  judg- 
ment of  said  court  or  of  the  Supreme  Court  of  the  United  States,  to 
which  an  appeal  shall  lie,  as  in  other  cases,  as  to  the  amount  due, 
shall  be  binding  and  conclusive  upon  the  parties.  The  payment  of 
such  amount  so  found  due  by  the  court  shall  discharge  such  obliga- 
tion. An  action  shall  accrue  to  the  United  States  against  such  prin- 
cipal, or  surety,  or  representative  to  recover  the  amount  so  found 
due,  which  may  be  brought  at  any  time  within  three  years  after  the 
final  judgment  of  said  court ;  and  unless  suit  shall  be  brought  with- 
in said  time,  such  claim  and  the  claim  on  the  original  indebtedness 
shall  be  forever  barred.  The  provisions  of  section  one  hundred  and 
sixty-six  shall  apply  to  cases  under  this  section. 

Appeals 

Sec.  181.  The  plaintiff  or  the  United  States,  in  any  suit  brought 
under  the  provision  of  the  section  last  preceding,  shall  have  the 
.same  right  of  appeal  as  is  conferred  under  sections  two  hundred  and 
forty-two  and  two  hundred  and  forty-three;  and  such  right  shall  be 
.exercised  only  within  the  time  and  in  the  manner  therein  prescribed. 

Appeals  in  Indian  cases 

Sec.  182.  In  any  case  brought  in  the  Court  of  Claims  under  any 
Act  of  Congress  by  which  that  court  is  authorized  to  render  a  judg- 
ment or  decree  against  the  United  States,  or  against  any  Indian 
-tribe  or  any  Indians,  or  against  any  fund  held  in  trust  by  the  Unit- 
ed States  for  any  Indian  tribe  or  for  any  Indians,  the  claimant,  or 
the  United  States,  or  the  tribe  of  Indians,  or  other  party  in  interest 
shall  have  the  same  right  of  appeal  as  is  conferred  under  sections 
two  hundred  and  forty-two  and  two  hundred  and  forty-three ;  and 
such  right  shall  be  exercised  only  within  the  time  and  in  the  manner 
.therein  prescribed. 


THE    JUDICIAL    CODE  663 

Attorney  General's  report  to  Congress 

Sec.  183.  The  Attorney-General  shall  report  to  Congress,  at  the 
beginning  of  each  regular  session,  the  suits  under  section  one  hun- 
dred and  eighty,  in  which  a  final  judgment  or  decree  has  been  ren- 
dered, giving  the  date  of  each  and  a  statement  of  the  costs  taxed  in 
each  case. 

Loyalty  a  jnrisdictional  fact  in  certain  cases 

Sec.  184.  In  any  case  of  a  claim  for  supplies  or  stores  taken  by 
or  furnished  to  any  part  of  the  military  or  naval  forces  of  the  Unit- 
ed States  for  their  use  during  the  late  Civil  War,  the  petition  shall 
aver  that  the  person  who  furnished  such  supplies  or  stores,  or  from 
whom  such  supplies  or  stores  were  taken,  did  not  give  any  aid  or 
comfort  to  said  rebellion,  but  was  throughout  that  war  loyal  to  the 
Government  of  the  United  States,  and  the  fact  of  such  loyalty  shall 
be  a  jurisdictional  fact;  and  unless  the  said  court  shall,  on  a  pre- 
liminary inquiry,  find  that  the  person  who  furnished  such  supplies  or 
stores,  or  from  whom  the  same  were  taken  as  aforesaid,  was  loyal 
to  the  Government  of  the  United  States  throughout  said  war,  the 
court  shall  not  have  jurisdiction  of  such  cause,  and  the  same  shall, 
without  further  proceedings,  be  dismissed. 

Attorney  General  to   appear  for  the  defence 

Sec.  185.  The  Attorney-General,  or  his  assistants  under  his  direc- 
tion, shall  appear  for  the  defense  and  protection  of  the  interests  of 
the  United  States  in  all  cases  which  may  be  transmitted  to  the  Court 
of  Claims  under  the  provisions  of  this  chapter,  with  the  same  power 
to  interpose  counter  claims,  offsets,  defenses  for  fraud  practiced  or 
attempted  to  be  practiced  by  claimants,  and  other  defenses,  in  like 
manner  as  he  is  required  to  defend  the  United  States  in  said  court. 

Persons  not  to  be  excluded  as  witnesses  on  account  of  color  or 
because  of  interest;  plaintiff  may  be  witness  for  Govern- 
ment 

Sec.  186.  No  person  shall  be  excluded  as  a  witness  in  the  Court  of 
Claims  on  account  of  color,  or  because  he  or  she  is  a  party  to  or  in- 
terested in  the  cause  or  proceeding;  and  any  plaintiff  or  party  in 
interest  may  be  examined  as  a  witness  on  the  part  of  the  Govern- 
ment. (As  amended  February  5,  1912,  37  Stat  61.) 

Reports  of  court  to  Congress 

Sec.  187.  Reports  of  the  Court  of  Claims  to  Congress,  under  sec- 
tions one  hundred  and  forty-eight  and  one  hundred  and  fifty-one, 
if  not  finally  acted  upon  during  the  session  at  which  they  are  re- 
ported, shall  be  continued  from  session  to  session  and  from  Congress 
to  Congress  until  the  same  shall  be  finally  acted  upon. 


664 


APPENDIX 


CHAPTER  EIGHT 

THE  COURT  OF  CUSTOMS  APPEALS 


Sec. 

188.  Court  of  Customs  Appeals;    ap- 

pointment and  salary  of  judg- 
es; quorum;  circuit  and  dis- 
trict judges  may  act  in  place 
of  judge  disqualified,  etc. 

189.  Court    to    be    always    open    for 

business;  terms  may  be  held 
in  any  circuit;  when  expenses 
of  judges  to  be  paid. 

190.  Marshal  of  the  court;    appoint- 

ment, salary,  and  duties. 

191.  Clerk    of    the    court;     appoint- 

ment, salary,  and  duties. 

192.  Assistant     clerk,     stenographic 

clerks,  and  reporter;  appoint- 
ment, salary,  and  duties. 

193.  Rooms  for  holding  court  to  be 

provided;  bailiffs  and  mes- 
sengers. 

194.  To  be  a  court  of  record;    to  pre- 

scribe form  and  style  of  seal, 


Sec. 

and  establish  rules  and  regu- 
lations; may  affirm,  modify, 
or  reverse  and  remand  case, 
etc. 

195.  Final     decisions     of     Board    of 

General  Appraisers  to  be  re- 
viewed only  by  Customs  Court. 

196.  Other  courts  deprived  of  juris- 

diction in  customs  cases; 
pending  cases  excepted. 

197.  Transfer   to   Customs   Court  of 

pending  cases;  completion  of 
testimony. 

198.  Appeals  from  Board  of  General 

Appraisers;  time  within  which 
to  be  taken;  record  to  be 
transmitted  to  Customs  Court. 

199.  Records  filed  in  Customs  Court 

to  be  at  once  placed  on  calen- 
dar; calendar  to  be  called  ev- 
ery sixty  days. 


Court  of  Customs  Appeals;  appointment  and  salary  of  judges; 
quorum;  circuit  and  district  judges  may  act  in  place  of 
judge  disqualified,  etc. 

Sec.  188.  There  shall  be  a  United  States  Court  of  Customs  Ap- 
peals, which  shall  consist  of  a  presiding  judge  and  four  associate 
judges,  each  of  whom  shall  be  appointed  by  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  and  shall  receive  a  salary 
of  seven  thousand  dollars  a  year.  The  presiding  judge  shall  be  so 
designated  in  the  order  of  appointment  and  in  the  commission  is- 
sued to  him  by  the  President;  and  the  associate  judges  shall  have 
precedence  according  to  the  date  of  their  commissions.  Any  three 
members  of  said  court  shall  constitute  a  quorum,  and  the  concur- 
rence of  three  members  shall  be  necessary  to  any  decision  thereof. 
In  case  of  a  vacancy  or  of  the  temporary  inability  or  disqualification, 
for  any  reason,  of  one  or  two  of  the  judges  of  said  court,  the  Presi- 
dent may,  upon  the  request  of  the  presiding  judge  of  said  court,  des- 
ignate any  qualified  United  States  circuit  or  district  judge  or  judges 
to  act  in  his  or  their  place;  and  such  circuit  or  district  judges  shall 
be  duly  qualified  to  so  act. 

Court  to  be  always  open  for  business;  terms  may  be  held  in 
any  circuit;  when  expenses  of  judges  to  be  paid 

Sec.  189.  The  said  Court  of  Customs  Appeals  shall  always  be  open 
for  the  transaction  of  business,  and  sessions  thereof  may,  in  the  dis- 
cretion of  the  court,  be  held  in  the  several  judicial  circuits,  and  at 


THE    JUDICIAL    CODE  6G5 

such  places  as  said  court  may  from  time  to  time  designate.  Any 
judge  who,  in  pursuance  of  the  provisions  of  this  chapter,  shall  at- 
tend a  session  of  said  court  at  any  place  other  than  the  city  of 
Washington,  shall  be  paid,  upon  his  written  and  itemized  certificate, 
by  the  marshal  of  the  district  in  which  the  court  shall  be  held,  his 
actual  and  necessary  expenses  incurred  for  travel  and  attendance, 
and  the  actual  and  necessary  expenses  of  one  stenographic  clerk  who 
may  accompany  him;  and  such  payments  shall  be  allowed  the  mar- 
shal in  the  settlement  of  his  accounts  with  the  United  States. 

Marshal  of  the  court;    appointment,   salary,  and  duties 

Sec.  190.  Said  court  shall  have  the  services  of  a  marshal,  with  the 
same  duties  and  powers,  under  the  regulations  of  the  court,  as  are 
now  provided  for  the  marshal  of  the  Supreme  Court  of  the  United 
States,  so  far  as  the  same  may  be  applicable.  Said  services  within 
the  District  of  Columbia  shall  be  performed  by  a  marshal  to  be  ap- 
pointed by  and  to  hold  office  during  the  pleasure  of  the  court,  who 
shall  receive  a  salary  of  three  thousand  dollars  per  annum.  Said 
services  outside  of  the  District  of  Columbia  shall  be  performed  by 
the  United  States  marshals  in  and  for  the  districts  where  sessions  of 
said  court  may  be  held ;  and  to  this  end  said  marshals  shall  be  the 
marshals  of  said  court  The  marshal  of  said  court,  for  the  District 
of  Columbia,  is  authorized  to  purchase,  under  the  direction  of  the 
presiding  judge,  such  books,  periodicals,  and  stationery,  as  may  be 
necessary  for  the  use  of  said  court;  and  such  expenditures  shall  be 
allowed  and  paid  by  the  Secretary  of  the  Treasury  upon  claim  duly 
made  and  approved  by  said  presiding  judge. 

Clerk   of  the    court;     appointment,    salary,    and   duties 

Sec.  191.  The  court  shall  appoint  a  clerk,  whose  office  shall  be  in 
the  city  of  Washington,  District  of  Columbia,  and  who  shall  perform 
and  exercise  the  same  duties  and  powers  in  regard  to  all  matters 
within  the  jurisdiction  of  said  court  as  are  now  exercised  and  per- 
formed by  the  clerk  of  the  Supreme  Court  of  the  United  States,  so 
far  as  the  same  may  be  applicable.  The  salary  of  the  clerk  shall  be 
three  thousand  five  hundred  dollars  per  annum,  which  sum  shall  be 
in  full  payment  for  all  service  rendered  by  such  clerk ;  and  all  fees 
of  any  kind  whatever,  and  all  costs  shall  be  by  him  turned  into  the 
United  States  Treasury.  Said  clerk  shall  not  be  appointed  by  the 
court  or  any  judge  thereof  as  a  commissioner,  master,  receiver,  or 
referee.  The  costs  and  fees  in  the  said  court  shall  be  fixed  and  es- 
tablished by  said  court  in  a  table  of  fees  to  be  adopted  and  approved 
by  the  Supreme  Court  of  the  United  States  within  four  mouths  after 
the  organization  of  said  court:  Provided,  That  the  costs  and  fees 
so  fixed  shall  not,  with  respect  to  any  item,  exceed  the  costs  and  fees 
charged  in  the  Supreme  Court  of  the  United  States;  and  the  same 
shall  be  expended,  accounted  for,  and  paid  over  to  the  Treasury  of 
the  United  States. 


666  APPENDIX 

Assistant  clerk,  stenographic  clerks,  and  reporter;  appoint- 
ment, salary,  and  duties 

Sec.  192.  In  addition  to  the  clerk,  the  court  may  appoint  an  as- 
sistant clerk  at  a  salary  of  two  thousand  dollars  per  annum,  five 
stenographic  clerks  at  a  salary  of  one  thousand  six  hundred  dollars 
per  annum  each,  one  stenographic  reporter  at  a  salary  of  two  thou- 
sand five  hundred  dollars  per  annum,  and  a  messenger  at  a  salary  of 
eight  hundred  and  forty  dollars  per  annum,  all  payable  in  equal 
monthly  installments,  and  all  of  whom,  including  the  clerk,  shall 
hold  office  during  the  pleasure  of  and  perform  such  duties  as  are 
assigned  them  by  the  court.  Said  reporter  shall  prepare  and  trans- 
mit to  the  Secretary  of  the  Treasury  once  a  week  in  time  for  publi- 
cation in  the  Treasury  Decisions  copies  of  all  decisions  rendered  to 
that  date  by  said  court,  and  prepare  and  transmit,  under  the  direc- 
tion of  said  court,  at  least  once  a  year,  reports  of  said  decisions  ren- 
dered to  that  date,  constituting  a  volume,  which  shall  be  printed  by 
the  Treasury  Department  in  such  numbers  and  distributed  or  sold  in 
such  manner  as  the  Secretary  of  the  Treasury  shall  direct 

Rooms  for  holding  court  to  be  provided;  bailiffs  and  messen- 
gers 

Sec.  193.  The  marshal  of  said  court  for  the  District  of  Columbia 
and  the  marshals  of  the  several  districts  in  which  said  Court  of 
Customs  Appeals  may  be  held  shall,  under  the  direction  of  the  At- 
torney General,  and  with  his  approval,  provide  such  rooms  in  the 
public  buildings  of  the  United  States  as  may  be  necessary  for  said 
court:  Provided,  That  in  case  proper  rooms  can  not  be  provided  in 
such  buildings,  then  the  said  marshals,  with  the  approval  of  the  At- 
torney-General, may,  from  time  to  time,  lease  such  rooms  as  may  be 
necessary  for  said  court.  The  bailiffs  and  messengers  of  said  court 
shall  be  allowed  the  same  compensation  for  their  respective  services 
as  are  allowed  for  similar  services  in  the  existing  district  courts.  In 
no  case  shall  said  marshals  secure  other  rooms  than  those  regularly 
occupied  by  existing  district  courts,  or  other  public  officers,  except 
where  such  can  not,  by  reason  of  actual  occupancy  or  use,  be  occu- 
pied or  used  by  said  Court  of  Customs  Appeals. 

To  be  a  court  of  record;  to  prescribe  form  and  style  of  seal, 
and  establish  rules  and  regulations;  may  affirm,  modify, 
or  reverse  and  remand  case,  etc. 

Sec.  194.  The  said  Court  of  Customs  Appeals  shall  be  a  court  of 
record,  with  jurisdiction  as  in  this  chapter  established  and  limited. 
It  shall  prescribe  the  form  and  style  of  its  seal,  and  the  form  of  its 
writs  and  other  process  and  procedure,  and  exercise  such  powers  con- 
ferred by  law  as  may  be  conformable  and  necessary  to  the  exercise 
of  its  jurisdiction.  It  shall  have  power  to  establish  all  rules  and 
regulations  for  the  conduct  of  the  business  of  the  court,  and  as  may 
be  needful  for  the  uniformity  of  decisions  within  its  jurisdiction  as 
conferred  by  law.  It  shall  have  power  to  review  any  decision  or 
matter  within  its  jurisdiction,  and  may  affirm,  modify,  or  reverse  the 


THE    JUDICIAL    CODE  667 

same  and  remand  the  case  with  such  orders  as  may  seem  to  It  proper 
in  the  premises,  which  shall  be  executed  accordingly. 

Final  decisions  of  Board  of  General  Appraisers  to  be  reviewed 

only  by  Customs  Court 

Sec.  195.  The  Court  of  Customs  Appeals  established  by  this  chap- 
ter shall  exercise  exclusive  appellate  jurisdiction  to  review  by  ap- 
peal, as  herein  provided,  final  decisions  by  a  Board  of  General  Ap- 
praisers in  all  cases  as  to  the  construction  of  the  law  and  the  facts 
respecting  the  classification  of  merchandise  and  the  rate  of  duty  im- 
posed thereon  under  such  classification,  and  the  fees  and  charges  con- 
nected therewith,  and  all  appealable  questions  as  to  the  jurisdiction 
of  said  board,  and  all  appealable  questions  as  to  the  laws  and  regula- 
tions governing  the  collection  of  the  customs  revenues;  and  the  judg- 
ments and  decrees  of  said  Court  of  Customs  Appeals  shall  be  final 
in  all  such  cases. 

Other  conrts  deprived  of  jurisdiction  in  customs  cases;    pend- 
ing cases  excepted 

Sec.  196.  After  the  organization  of  said  court,  no  appeal  shall  be 
taken  or  allowed  from  any  Board  of  United  States  General  Apprais- 
ers to  any  other  court,  and  no  appellate  jurisdiction  shall  thereafter 
be  exercised  or  allowed  by  any  other  courts  in  cases  decided  by  said 
Board  of  United  States  General  Appraisers ;  but  all  appeals  allowed 
by  law  from  such  Board  of  General  Appraisers  shall  be  subject  to 
review  only  in  the  Court  of  Customs  Appeals  hereby  established, 
according  to  the  provisions  of  this  chapter:  Provided,  That  nothing 
in  this  chapter  shall  be  deemed  to  deprive  the  Supreme  Court  of  the 
United  States  of  jurisdiction  to  hear  and  determine  all  customs  cases 
which  have  heretofore  been  certified  to  said  court  from  the  United 
States  circuit  courts  of  appeals  on  applications  for  writs  of  certiorari 
or  otherwise,  nor  to  review  by  writ  of  certiorari  any  customs  case 
heretofore  decided  or  now  pending  and  hereafter  decided  by  any  cir- 
cuit court  of  appeals,  provided  application  for  said  writ  be  made 
within  six  months  after  August  fifth,  nineteen  hundred  and  nine: 
Provided  further,  That  all  customs  cases  decided  by  a  circuit  or  dis- 
trict court  of  the  United  States  or  a  court  of  a  Territory  of  the 
United  States  prior  to  said  date  above  mentioned,  and  which  have 
not  been  removed  from  said  courts  by  appeal  or  writ  of  error,  and 
all  such  cases  theretofore  submitted  for  decision  in  said  courts  and 
remaining  undecided  may  be  reviewed  on  appeal  at  the  instance  of 
either  party  by  the  United  States  Court  of  Customs  Appeals,  pro- 
vided such  appeal  be  taken  within  one  year  from  the  date  of  the  en- 
try of  the  order,  judgment,  or  decrees  sought  to  be  reviewed. 

Transfer  to   Customs   Court  of   pending  cases;    completion   of 
testimony 

Sec.  197.  Immediately  upon  the  organization  of  the  Court  of  Cus- 
toms Appeals,  all  cases  within  the  jurisdiction  of  that  court  pending 


668 


APPENDIX 


and  not  submitted  for  decision  in  any  of  the  United  States  circuit 
courts  of  appeals,  United  States  circuit,  territorial  or  district  courts, 
shall,  with  the  record  and  samples  therein,  be  certified  by  said  courts 
to  said  Court  of  Customs  Appeals  for  further  proceedings  in  accord- 
ance herewith:  Provided,  That  where  orders  for  the  taking  of  fur- 
ther testimony  before  a  referee  have  been  made  in  any  of  such  cases, 
the  taking  of  such  testimony  shall  be  completed  before  such  certifi- 
cation. 

Appeals  from  Board  of  General  Appraisers;  time  within 
which  to  be  taken;  record  to  be  transmitted  to  Customs 
Court 

Sec.  198.  If  the  importer,  owner,  consignee,  or  agent  of  any  im- 
ported merchandise,  or  the  collector  or  Secretary  of  the  Treasury, 
shall  be  dissatisfied  with  the  decision  of  the  Board  of  General  Ap- 
praisers as  to  the  construction  of  the  law  and  the  facts  respecting 
the  classification  of  such  merchandise  and  the  rate  of  duty  imposed 
thereon  under  such  classification,  or  with  any  other  appealable  deci- 
sion, of  said  board,  they,  or  either  of  them,  may,  within  sixty  days 
next  after  the  entry  of  such  decree  or  judgment,  and  not  afterwards, 
apply  to  the  Court  of  Customs  Appeals  for  a  review  of  the  questions 
of  law  and  fact  involved  in  such  decision:  Provided,  That  in  Alaska 
and  in  the  insular  and  other  outside  possessions  of  the  United  States 
ninety  days  shall  be  allowed  for  making  such  application  to  the 
Court  of  Customs  Appeals.  Such  application  shall  be  made  by  filing 
in  the  office  of  the  clerk  of  said  court  a  concise  statement  of  errors 
of  law  and  fact  complained  of;  and  a  copy  of  such  statement  shall 
be  served  on  the  collector,  or  on  the  importer,  owner,  consignee,  or 
agent,  as  the  case  may  be.  Thereupon  the  court  shall  immediately 
order  the  Board  of  General  Appraisers  to  transmit  to  said  court 
the  record  and  evidence  taken  by  them,  together  with  the  certified 
statement  of  the  facts  involved  in  the  case  and  their  decision  thereon; 
and  all  the  evidence  taken  by  and  before  said  board  shall  be  compe- 
tent evidence  before  said  Court  of  Customs  Appeals.  The  decision 
of  said  Court  of  Customs  Appeals  shall  be  final,  and  such  cause  shall 
be  remanded  to  said  Board  of  General  Appraisers  for  further  pro- 
ceedings to  be  taken  in  pursuance  of  such  determination. 

Records  filed  in  Customs  Court  to  be  at  once  placed  on  cal- 
endar; calendar  to  be  called  every  sixty  days 

Sec.  199.  Immediately  upon  receipt  of  any  record  transmitted  to 
said  court  for  determination  the  clerk  thereof  shall  place  the  same 
upon  the  calendar  for  hearing  and  submission;  and  such  calendar 
shall  be  called  and  all  cases  thereupon  submitted,  except  for  good 
cause  shown,  at  least  once  every  sixty  days:  Provided,  That  such 
calendar  need  not  be  called  during  the  months  of  July  and  August 
of  any  year. 


TOE    JUDICIAL    CODE 


669 


CHAPTER  NINE 
THE  COMMERCE  COURT 

[This  court  Is  abolished  by  the  urgent  Deficiency  Appropriation  Bill  of 
October  22,  1913.  But  the  chapter  is  retained  because  it  is  necessary  for 
a  proper  understanding  of  the  transfer  of  Jurisdiction.  The  portion  of 
the  act  abolishing  it  is  printed  post,  p.  701.1 


Sec. 

200.  Commerce  Court  created;   judg- 

es of,  appointment  and  desig- 
nation; expense  allowance  to 
judges. 

201.  Additional   circuit  judges;     ap- 

pointment and  assignment. 

202.  Officers    of    the    court;      clerk, 

marshal,  etc.;    salaries,  etc. 

203.  Court    to    be    always    open    for 

business;  sessions  of,  to  be 
held  in  Washington  and  else- 
where. 

204.  Marshals  to  provide  rooms   for 

holding  court  outside  of 
Washington. 

205.  Assignment  of  judges  to  other 

duty;    vacancies,  how  filled. 

206.  Powers    of    court    and    judges; 

writs,  process,  procedure,  etc. 

207.  Jurisdiction  of  the  court. 

208.  Suits  to  enjoin,   etc.,    orders  of 

Interstate  Commerce  Commis- 


Sec. 

sion  to  be  against  United 
States;  restraining  orders, 
when  granted  without  notice. 

209.  Jurisdiction   of    the    court,    how 

invoked;  practice  and  proce- 
dure. 

210.  Final  judgments  and  decrees  re- 

viewable  in  Supreme  Court. 

211.  Suits     to     be     against     United 

States;  when  United  States 
may  intervene. 

212.  Attorney  General  to  control  all 

cases;  Interstate  Commerce 
Commission  may  appear  as  of 
right;  parties  interested  may 
intervene,  etc. 

213.  Complainants   may  appear  and 

be  made  parties  to  case. 

214.  Pending  cases  to  be  transferred 

to  Commerce  Court;  excep- 
tion; status  of  transferred 
cases. 


Commerce  Court  created;  judges  of,  appointment  and  designa- 
tion;   expense  allowance  to  judges 

Sec.  200.  There  shall  be  a  court  of  the  United  States,  to  be 
known  as  the  Commerce  Court,  which  shall  be  a  court  of  record,  and 
shall  have  a  seal  of  such  form  and  style  as  the  court  may  prescribe. 
The  said  court  shall  be  composed  of  five  judges,  to  be  from  time  to 
time  designated  and  assigned  thereto  by  the  Chief  Justice  of  the 
United  States,  from  among  the  circuit  judges  of  the  United  States, 
for  the  period  of  five  years,  except  that  in  the  first  instance  the 
court  shall  be  composed  of  the  five  additional  circuit  judges  re- 
ferred to  in  the  next  succeeding  section,  who  shall  be  designated  by 
the  President  to  serve  for  one,  two,  three,  four,  and  five  years,  re- 
spectively, in  order  that  the  period  of  designation  of  one  of  the  said 
judges  shall  expire  in  each  year  thereafter.  In  case  of  the  death, 
resignation,  or  termination  of  assignment  of  any  judge  so  designated, 
the  Chief  Justice  shall  designate  a  circuit  judge  to  fill  the  vacancy 
so  caused  and  to  serve  during  the  unexpired  period  for  which  the 
original  designation  was  made.  After  the  year  nineteen  hundred 
and  fourteen  no  circuit  judge  shall  be  redesignated  to  serve  in  the 
Commerce  Court  until  the  expiration  of  at  least  one  year  after  the 


670  APPENDIX 

expiration  of  the  period  of  his  last  previous  designation.  The  judge 
first  designated  for  the  five-year  period  shall  be  the  presiding  judge 
of  said  court,  and  thereafter  the  judge  senior  in  designation  shall 
be  the  presiding  judge.  The  associate  judges  shall  have  precedence 
and  shall  succeed  to  the  place  and  powers  of  the  presiding  judge 
whenever  he  may  be  absent  or  incapable  of  acting  in  the  order  of 
the  date  of  their  designations.  Four  of  said  judges  shall  constitute 
a  quorum,  and  at  least  a  majority  of  the  court  shall  concur  in  all 
decisions.  Each  of  the  judges  during  the  period  of  his  service  in  the 
Commerce  Court  shall,  on  account  of  the  regular  sessions  of  the 
court  being  held  in  the  city  of  Washington,  receive  in  addition  to 
his  salary  as  circuit  judge  an  expense  allowance  at  the  rate  of  one 
thousand  five  hundred  dollars  per  annum. 

Additional  circuit  judges;    appointment  and  assignment 

Sec.  201.  The  five  additional  circuit  judges  authorized  by  the  Act 
to  create  a  Commerce  Court,  and  for  other  purposes,  approved  June 
eighteenth,  nineteen  hundred  and  ten,  shall  hold  office  during  good 
behavior,  and  from  time  to  time  shall  be  designated  and  assigned  by 
the  Chief  Justice  of  the  United  States  for  service  in  the  district 
court  of  any  district,  or  the  circuit  court  of  appeals  for  any  circuit, 
or  in  the  Commerce  Court,  and  when  so  designated  and  assigned  for 
service  in  a  district  court  or  circuit  court  of  appeals  shall  have  the 
powers  and  jurisdiction  in  this  Act  conferred  upon  a  circuit  judge  in 
his  circuit. 

Officers  of  the  court;  clerk,  marshal,  etc.;  salaries,  etc. 

Sec.  202.  The  court  shall  also  have  a  clerk  and  a  marshal,  with 
the  same  duties  and  powers,  so  far  as  they  may  be  appropriate  and 
are  not  altered  by  rule  of  the  court,  as  are  now  possessed  by  the 
clerk  and  marshal,  respectively,  of  the  Supreme  Court  of  the  United 
States.  The  offices  of  the  clerk  and  marshal  of  the  court  shall  be  in 
the  city  of  Washington,  in  the  District  of  Columbia.  The  judges  of 
the  court  shall  appoint  the  clerk  and  marshal,  and  may  also  appoint, 
if  they  find  it  necessary,  a  deputy  clerk  and  deputy  marshal ;  and 
such  clerk,  marshal,  deputy  clerk,  and  deputy  marshal,  shall  hold 
office  during  the  pleasure  of  the  court.  The  salary  of  the  clerk  shall 
be  four  thousand  dollars  per  annum;  the  salary  of  the  marshal  three 
thousand  dollars  per  annum ;  the  salary  of  the  deputy  clerk  two 
thousand  five  hundred  dollars  per  annum;  and  the  salary  of  the 
deputy  marshal  two  thousand  five  hundred  dollars  per  annum.  The 
said  clerk  and  marshal  may,  with  the  approval  of  the  court,  employ 
all  requisite  assistance.  The  costs  and  fees  in  said  court  shall  be 
established  by  the  court  in  a  table  thereof,  approved  by  the  Supreme 
Court  of  the  United  States,  within  four  months  after  the  organiza- 
tion of  the  court;  but  such  costs  and  fees  shall  in  no  case  exceed 
those  charged  in  the  Supreme  Court  of  the  United  States,  and  shall 
be  accounted  for  and  paid  into  the  Treasury  of  the  United  States. 


THE    JUDICIAL    CODE  671 

Court  to  be  always  open  for  business;    sessions  of,  to  be  held 

in  Washington  and  elsewhere 

Sec.  203.  The  Commerce  Court  shall  always  be  open  for  the  trans- 
action of  business.  Its  regular  sessions  shall  be  held  In  the  city  of 
Washington,  in  the  District  of  Columbia ;  but  the  powers  of  the 
court  or  of  any  judge  thereof,  or  of  the  clerk,  marshal,  deputy  clerk, 
or  deputy  marshal,  may  be  exercised  anywhere  in  the  United  States; 
and  for  expedition  of  the  work  of  the  court  and  the  avoidance  of  un- 
due expense  or  inconvenience  to  suitors  the  court  shall  hold  sessions 
in  different  parts  of  the  United  States  as  may  be  found  desirable. 
The  actual  and  necessary  expenses  of  the  judges,  clerk,  marshal,  dep- 
uty clerk,  and  deputy  marshal  of  the  court  incurred  for  travel  and 
attendance  elsewhere  than  in  the  city  of  Washington  shall  be  paid 
upon  the  written  and  itemized  certificate  of  such  judge,  clerk,  mar- 
shal, deputy  clerk,  or  deputy  marshal,  by  the  marshal  of  the  court, 
and  shall  be  allowed  to  him  in  the  settlement  of  his  accounts  with 
the  United  States. 

Marshals  to  provide  rooms  for  holding  court  outside  of  Wash- 
ington 

Sec.  204.  The  United  States  marshals  of  the  several  districts  out- 
side of  the  city  of  Washington  in  which  the  Commerce  Court  may 
hold  its  sessions  shall  provide,  under  the  direction  and  with  the  ap- 
proval of  the  Attorney  General,  such  rooms  in  the  public  buildings  of 
the  United  States  as  may  be  necessary  for  the  court's  use;  but  in 
case  proper  rooms  can  not  be  provided  in  such  public  buildings,  said 
marshals,  with  the  approval  of  the  Attorney  General,  may  then  lease 
from  time  to  time  other  necessary  rooms  for  the  court. 

Assignment  of  judges  to  other  duty;  vacancies,  how  filled 

Sec.  205.  If,  at  any  time,  the  business  of  the  Commerce  Court  does 
not  require  the  services  of  all  the  judges,  the  Chief  Justice  of  the 
United  States  may,  by  writing,  signed  by  him  and  filed  in  the  Depart- 
ment of  Justice,  terminate  the  assignment  of  any  of  the  judges  or 
temporarily  assign  him  for  service  in  any  district  court  or  circuit 
court  of  appeals.  In  case  of  illness  or  other  disability  of  any  judge 
assigned  to  the  Commerce  Court  the  Chief  Justice  of  the  United 
States  may  assign  any  other  circuit  judge  of  the  United  States  to  act 
in  his  place,  and  may  terminate  such  assignment  when  the  exigency 
therefor  shall  cease;  and  any  circuit  judge  so  assigned  to  act  in 
place  of  such  judge  shall,  during  his  assignment,  exercise  all  the 
powers  and  perform  all  the  functions  of  such  judge. 

Powers  of  court  and  judges;    writs,  process,  procedure,  etc. 

Sec.  206.  In  all  cases  within  its  jurisdiction  the  Commerce  Court, 
and  each  of  the  judges  assigned  thereto,  shall,  respectively,  have  and 
may  exercise  any  and  all  of  the  powers  of  a  district  court  of  the 
United  States  and  of  the  judges  of  said  court,  respectively,  so  far  as 


672  APPENDIX 

the  same  may  be  appropriate  to  the  effective  exercise  of  the  Jurisdic- 
tion hereby  conferred.  The  Commerce  Court  may  issue  all  writs  and 
process  appropriate  to  the  full  exercise  of  its  jurisdiction  and  pow- 
ers and  may  prescribe  the  form  thereof.  It  may  also,  from  time  to 
time,  establish  such  rules  and  regulations  concerning  pleading,  prac- 
tice, or  procedure  in  cases  or  matters  within  its  jurisdiction  as  to 
the  court  shall  seem  wise  and  proper.  Its  orders,  writs,  and  process 
may  run,  be  served,  and  be  returnable  anywhere  in  the  United 
States;  and  the  marshal  and  deputy  marshal  of  said  court  and  also 
the  United  States  marshals  and  deputy  marshals  in  the  several  dis- 
tricts of  the  United  States  shall  have  like  powers  and  be  under  like 
duties  to  act  for  and  in  behalf  of  said  court  as  pertain  to  United 
States  marshals  and  deputy  marshals  generally  when  acting  under 
like  conditions  concerning  suits  or  matters  in  the  district  courts  of 
the  United  States. 

Jurisdiction  of  the  court 

Sec.  207.  The  Commerce  Court  shall  have  the  jurisdiction  pos- 
sessed by  circuit  courts  of  the  United  States  and  the  judges  thereof 
immediately  prior  to  June  eighteenth,  nineteen  hundred  and  ten,  over 
all  cases  of  the  following  kinds: 

First.  All  cases  for  the  enforcement,  otherwise  than  by  adjudica- 
tion and  collection  of  a  forfeiture  or  penalty  or  by  infliction  of  crim- 
inal punishment,  of  any  order  of  the  Interstate  Commerce  Commis- 
sion other  than  for  the  payment  of  money. 

Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend  In 
whole  or  in  part  any  order  of  the  Interstate  Commerce  Commission. 

Third.  Such  cases  as  by  section  three  of  the  Act  entitled  "An 
Act  to  further  regulate  commerce  with  foreign  nations  and  among 
the  States,"  approved  February  nineteenth,  nineteen  hundred  and 
three,  are  authorized  to  be  maintained  in  a  circuit  court  of  the  Unit- 
ed States. 

Fourth.  All  such  mandamus  proceedings  as  under  the  provisions 
of  section  twenty  or  section  twenty-three  of  the  Act  entitled  "An 
Act  to  regulate  commerce,"  approved  February  fourth,  eighteen  hun- 
dred and  eighty-seven,  as  amended,  are  authorized  to  be  maintained 
in  a  circuit  court  of  the  United  States. 

Nothing  contained  in  this  chapter  shall  be  construed  as  enlarging 
the  jurisdiction  now  possessed  by  the  circuit  courts  of  the  United 
States  or  the  judges  thereof,  that  is  hereby  transferred  to  and  vested 
in  the  Commerce  Court. 

The  jurisdiction  of  the  Commerce  Court  over  cases  of  the  foregoing 
classes  shall  be  exclusive;  but  this  chapter  shall  not  affect  the  juris- 
diction possessed  by  any  circuit  or  district  court  of  the  United  States 
over  cases  or  proceedings  of  a  kind  not  within  the  above-enumerated 
classes. 


THE    JUDICIAL    CODE  673 

Suits  to  enjoin,  etc.,  orders  of  Interstate  Commerce  Commis- 
sion to  be  against  United  States;  restraining  orders,  when 
granted  without  notice 

Sec.  208.  Suits  to  enjoin,  set  aside,  annul,  or  suspend  any  order 
of  the  Interstate  Commerce  Commission  shall  be  brought  in  the 
Commerce  Court  against  the  United  States.  The  pendency  of  such 
suit  shall  not  of  itself  stay  or  suspend  the  operation  of  the  order  of 
the  Interstate  Commerce  Commission;  but  the  Commerce  Court,  in 
its  discretion,  may  restrain  or  suspend,  in  whole  or  in  part,  the  opera- 
tion of  the  commission's  order  pending  the  final  hearing  and  deter- 
mination of  the  suit.  No  order  or  injunction  so  restraining  or  sus- 
pending an  order  of  the  Interstate  Commerce  Commission  shall  be 
made  by  the  Commerce  Court  otherwise  than  upon  notice  and  after 
hearing,  except  that  in  cases  where  irreparable  damage  would  other- 
wise ensue  to  the  petitioner,  said  court,  or  a  judge  thereof  may,  on 
hearing  after  not  less  than  three  days'  notice  to  the  Interstate  Com- 
merce Commission  and  the  Attorney  General,  allow  a  temporary  stay 
or  suspension  in  whole  or  in  part  of  the  operation  of  the  order  of 
the  Interstate  Commerce  Commission  for  not  more  than  sixty  days 
from  the  date  of  the  order  of  such  court  or  judge,  pending  applica- 
tion to  the  court  for  its  order  or  injunction,  in  which  case  the  said 
order  shall  contain  a  specific  finding,  based  upon  evidence  submitted 
to  the  judge  making  the  order  and  identified  by  reference  thereto, 
that  such  irreparable  damage  would  result  to  the  petitioner  and 
specifying  the  nature  of  the  damage.  The  court  may,  at  the  time  of 
hearing  such  application,  upon  a  like  finding,  continue  the  temporary 
stay  or  suspension  in  whole  or  in  part  until  its  decision  upon  the 
application. 

Jurisdiction  of  the  court,  how  invoked;  practice  and  pro- 
cedure 

See.  209.  The  jurisdiction  of  the  Commerce  Court  shall  be  invoked 
by  filing  in  the  office  of  the  clerk  of  the  court  a  written  petition  set- 
ting forth  briefly  and  succinctly  the  facts  constituting  the  petitioner's 
cause  of  action,  and  specifying  the  relief  sought.  A  copy  of  such 
petition  shall  be  forthwith  served  by  the  marshal  or  a  deputy  mar- 
shal of  the  Commerce  Court  or  by  the  proper  United  States  marshal 
or  deputy  marshal  upon  every  defendant  therein  named,  and  when 
the  United  States  is  a  party  defendant,  the  service  shall  be  made  by 
filing  a  copy  of  said  petition  in  the  office  of  the  Secretary  of  the  In- 
terstate Commerce  Commission  and  in  the  Department  ef  Justice. 
Within  thirty  days  after  the  petition  is  served,  unless  that  time  is 
extended  by  order  of  the  court  or  a  judge  thereof,  an  answer  to  the 
petition  shall  be  filed  in  the  clerk's  office,  and  a  copy  thereof  mailed 
to  the  petitioner's  attorney,  which  answer  shall  briefly  and  categor- 
ically respond  to  the  allegations  of  the  petition.  No  replication  need 
be  filed  to  the  answer,  and  objections  to  the  sufficiency  of  the  peti- 
tion or  answer  as  not  setting  forth  a  cause  of  action  or  defense  must 
HUGHES  FED.PB.(2o  ED.) — 43 


674  APPENDIX 

be  taken  at  the  final  hearing  or  by  motion  to  dismiss  the  petition 
based  on  said  grounds,  which  motion  may  be  made  at  any  time  before 
answer  is  filed.  In  case  no  answer  shall  be  filed  as  provided  herein 
the  petitioner  may  apply  to  the  court  on  notice  for  such  relief  as  may 
be  proper  upon  the  facts  alleged  in  the  petition.  The  court  may,  by 
rule,  prescribe  the  method  of  taking  evidence  in  cases  pending  in  said 
court;  and  may  prescribe  that  the  evidence  be  taken  before  a  single 
judge  of  the  court,  with  power  to  rule  upon  the  admission  of  evi- 
dence. Except  as  may  be  otherwise  provided  in  this  chapter,  or  by 
rule  of  the  court,  the  practice  and  procedure  in  the  Commerce  Court 
shall  conform  as  nearly  as  may  be  to  that  in  like  cases  in  a  district 
court  of  the  United  States. 

Final  judgments  and  decrees  reviewable  in  Supreme  Court 

Sec.  210.  A  final  judgment  or  decree  of  the  Commerce  Court  may 
be  reviewed  by  the  Supreme  Court  of  the  United  States  if  appeal  to 
the  Supreme  Court  be  taken  by  an  aggrieved  party  within  sixty  days 
after  the  entry  of  said  final  judgment  or  decree.  Such  appeal  may 
be  taken  in  like  manner  as  appeals  from  a  district  court  of  the  United 
States  to  the  Supreme  Court,  and  the  Commerce  Court  may  direct 
the  original  record  to  be  transmitted  on  appeal  instead  of  a  tran- 
script thereof.  The  Supreme  Court  may  affirm,  reverse,  or  modify 
the  final  judgment  or  decree  of  the  Commerce  Court  as  the  case  may 
require.  Appeal  to  the  Supreme  Court,  however,  shall  in  no  case 
supersede  or  stay  the  judgment  or  decree  of  the  Commerce  Court 
appealed  from,  unless  the  Supreme  Court  or  a  justice  thereof  shall 
so  direct;  and  appellant  shall  give  bond  in  such  form  and  of  such 
amount  as  the  Supreme  Court,  or  the  justice  of  that  court  allowing 
the  stay,  may  require.  An  appeal  may  also  be  taken  to  the  Supreme 
Court  of  the  United  States  from  an  interlocutory  order  or  decree 
of  the  Commerce  Court  granting  or  continuing  an  injunction  restrain- 
ing the  enforcement  of  an  order  of  the  Interstate  Commerce  Commis- 
sion, provided  such  appeal  be  taken  within  thirty  days  from  the  en- 
try of  such  order  or  decree.  Appeals  to  the  Supreme  Court  under 
this  section  shall  have  priority  in  hearing  and  determination  over 
all  other  causes  except  criminal  causes  in  that  court. 

Suits  to  be  against  United  States;  when  United  States  may 
intervene 

Sec.  211.  All  cases  and  proceedings  in  the  Commerce  Court  which 
but  for  this  chapter  would  be  brought  by  or  against  the  Interstate 
Commerce  Commission,  shall  be  brought  by  or  against  the  United 
States,  and  the  United  States  may  intervene  in  any  case  or  proceed- 
ing in  the  Commerce  Court  whenever,  though  it  has  not  been  made 
a  party,  public  interests  are  involved. 

Attorney  General  to  control  all  cases;  Interstate  Commerce 
Commission  may  appear  as  of  right;  parties  interested 
may  intervene,  etc. 

Sec.  212.  The  Attorney  General  shall  have  charge  and  control  of 
the  interests  of  the  Government  in  all  cases  and  proceedings  in  the 


THE    JUDICIAL    CODE  675 

Commerce  Court,  and  in  the  Supreme  Court  of  the  United  States 
upon  appeal  from  the  Commerce  Court.  If  in  his  opinion  the  public 
interest  requires  it,  he  may  retain  and  employ  in  the  name  of  the 
United  States,  within  the  appropriations  from  time  to  time  made  by 
the  Congress  for  such  purposes,  such  special  attorneys  and  counselors 
at  law  as  he  may  think  necessary  to  assist  in  the  discharge  of  any  of 
the  duties  incumbent  upon  him  and  his  subordinate  attorneys ;  and 
the  Attorney  General  shall  stipulate  with  such  special  attorneys  and 
counsel  the  amount  of  their  compensation,  which  shall  not  be  in 
excess  of  the  sums  appropriated  therefor  by  Congress  for  such  pur- 
poses, and  shall  have  supervision  of  their  action:  Provided,  That  the 
Interstate  Commerce  Commission  and  any  party  or  parties  in  interest 
to  the  proceeding  before  the  commission,  in  which  an  order  or  re- 
quirement is  made,  may  appear  as  parties  thereto  of  their  own  mo- 
tion and  as  of  right,  and  be  represented  by  their  counsel,  in  any 
suit  wherein  is  involved  the  validity  of  such  order  or  requirement  or 
any  part  thereof,  and  the  interest  of  such  party;  and  the  court  where- 
in is  pending  such  suit  may  make  all  such  rules  and  orders  as  to 
such  appearances  and  representations,  the  number  of  counsel,  and  all 
matters  of  procedure,  and  otherwise,  as  to  subserve  the  ends  of  jus- 
tice and  speed  the  determination  of  such  suits:  Provided  further, 
That  communities,  associations,  corporations,  firms,  and  individuals 
who  are  interested  in  the  controversy  or  question  before  the  Inter- 
state Commerce  Commission,  or  in  any  suit  which  may  be  brought  by 
any  one  under  the  provisions  of  this  chapter,  or  the  Acts  of  which 
it  is  amendatory  or  which  are  amendatory  of  it,  relating  to  action 
of  the  Interstate  Commerce  Commission,  may  intervene  in  said  suit 
or  proceedings  at  any  time  after  the  institution  thereof;  and  the 
Attorney  General  shall  not  dispose  of  or  discontinue  said  suit  or  pro- 
ceeding over  the  objection  of  such  party  or  intervenor  aforesaid,  but 
said  intervenor  or  intervenors  may  prosecute,  defend,  or  continue 
said  suit  or  proceeding  unaffected  by  the  action  or  non-action  of  the 
Attorney  General  therein. 

Complainants  may  appear  and  be  made  parties  to  case 

Sec.  213.  Complainants  before  the  Interstate  Commerce  Commis- 
sion interested  in  a  case  shall  have  the  right  to  appear  and  be  made 
parties  to  the  case  and  be  represented  before  the  courts  by  counsel, 
under  such  regulations  as  are  now  permitted  in  similar  circumstances 
under  the  rules  and  practice  of  equity  courts  of  the  United  States. 

Pending  cases  to  be  transferred  to  Commerce  Conrt;    excep- 
tion;   status  of  transferred  cases 

Sec.  214.  Until  the  opening  of  the  Commerce  Court,  all  cases  and 
proceedings  of  which  from  that  time  the  Commerce  Court  is  hereby 
given  exclusive  jurisdiction  may  be  brought  in  the  same  courts  and 
conducted  in  like  manner  and  with  like  effect  as  is  now  provided  by 
law;  and  if  any  such  case  or  proceeding  shall  have  gone  to  final 
judgment  or  decree  before  the  opening  of  the  Commerce  Court,  appeal 


676 


APPENDIX 


may  be  taken  from  such  final  judgment  or  decree  In  like  manner 
and  with  like  effect  as  is  now  provided  by  law.  Any  such  case  or 
proceeding  within  the  jurisdiction  of  the  Commerce  Court  which  may 
have  been  begun  in  any  other  court  as  hereby  allowed,  before  the 
said  date,  shall  be  forthwith  transferred  to  the  Commerce  Court,  if 
it  has  not  yet  proceeded  to  final  judgment  or  decree  in  such  other 
court  unless  it  has  been  finally  submitted  for  the  decision  of  such 
court,  in  which  case  the  cause  shall  proceed  in  such  court  to  final 
judgment  or  decree  and  further  proceeding  thereafter,  and  appeal 
may  be  taken  direct  to  the  Supreme  Court;  and  if  remanded,  such 
cause  may  be  sent  back  to  the  court  from  which  the  appeal  was  taken 
or  to  the  Commerce  Court  for  further  proceeding  as  the  Supreme 
Court  shall  direct.  All  previous  proceedings  in  such  transferred  case 
shall  stand  and  operate  notwithstanding  the  transfer,  subject  to  the 
same  control  over  them  by  the  Commerce  Court  and  to  the  same 
right  of  subsequent  action  in  the  case  or  proceeding  as  if  the  trans- 
ferred case  or  proceeding  had  been  originally  begun  in  the  Commerce 
Court.  The  clerk  of  the  court  from  which  any  case  or  proceeding  is 
so  transferred  to  the  Commerce  Court  shall  transmit  to  and  file  in 
the  Commerce  Court  the  originals  of  all  papers  filed  in  such  case  or 
proceeding  and  a  certified  transcript  of  all  record  entries  in  the  case 
or  proceeding  up  to  the  time  of  transfer. 


CHAPTER  TEN 
THE  SUPREME  COURT 


Sec. 

215.  Number  of  justices. 

216.  Precedence    of    the    associate 

justices. 

217.  Vacancy  in  the  office  of  Chief 

Justice. 

218.  Salaries  of  justices. 

219.  Clerk,  marshal,  and  reporter. 

220.  The  clerk  to  give  bond. 

221.  Deputies  of  the  clerk. 

222.  Records   of  the   old   court   of 

appeals. 

223.  Tables  of  fees. 

224.  Marshal      of      the      Supreme 

Court. 

225.  Duties  of  the  reporter. 

226.  Reporter's  salary  and  allow- 

ances. 

227.  Distribution    of    reports    and 

digests. 

[227a.  Distribution  of  reports  to  li- 
braries of  circuit  courts  of 
appeals.] 


Sec. 

228.  Additional     reports     and     di- 

gests; limitation  upon  cost; 
estimates  to  be  submitted  to 
Congress  annually. 

229.  Distribution    of    Federal    Re- 

porter, etc.,  and  Digests. 

230.  Terms. 

231.  Adjournment   for    want   of   a 

quorum. 

232.  Certain   orders   made   by  less 

than  quorum. 

233.  Original  disposition. 

234.  Writs  of  prohibition  and  man- 

damus. 

235.  Issues  of  fact. 

236.  Appellate  jurisdiction. 

237.  Writs    of    error    from    judg- 

ments and  decrees  of  State 
courts. 

238.  Appeals    and    writs    of    error 

from  United  States  district 
courts. 


THE    JUDICIAL    CODE 


677 


Sec. 

239.  Circuit  court  of  appeals  may 

certify  questions  to  Supreme 
Court  for  instructions. 

240.  Certiorari  to  circuit  court  of 

appeals. 

241.  Appeals  and  writs  of  error  in 

other  cases. 

242.  Appeals       from       Court       of 

Claims. 

243.  Time  and  manner  of  appeals 

from  the  Court  of  Claims. 

244.  Writs    of    error    and    appeals 

from  supreme  court  of  and 
United  States  district  court 
for  Porto  Rico. 

245.  Writs    of    error    and    appeals 

from  the  Supreme  Courts  of 
Arizona  and  New  Mexico. 

246.  Writs    of    error    and    appeals 

from  the  Supreme  Court  of 
Hawaii. 


Number  of  justices 

Sec.  215.     [See  ante,  p.  495.] 


Sec. 

247.  Appeals    and    writs    of    error 

from  the  district  court  for 
Alaska  direct  to  Supreme 
Court  In  certain  cases. 

248.  Appeals    and    writs    of    error 

from  the  Supreme  Court  of 
the  Philippine  Islands. 

249.  Appeals    and    writs    of    error 

when  a  Territory  becomes  a 
State. 

250.  Appeals    and    writs    of    error 

from  the  Court  of  Appeals 
of  the  District  of  Columbia. 

251.  Certiorari    to    Court    of    Ap- 

peals, District  of  Columbia. 

252.  Appellate    jurisdiction    under 

the  bankruptcy  act. 

253.  Precedence  of  writs  of  error 

to  State  courts. 

254.  Cost  of  printing  records. 

255.  Women   may   be   admitted   to 

practice. 


Precedence  of  the  associate  justices 

Sec.  216.  The  associate  justices  shall  have  precedence  according 
to  the  dates  of  their  commissions,  or,  when  the  commissions  of  two 
or  more  of  them  bear  the  same  date,  according  to  their  ages. 

Vacancy  in  the  office  of  Chief  Justice 

Sec.  217.  In  case  of  a  vacancy  in  the  office  of  Chief  Justice,  or  of 
his  inability  to  perform  the  duties  and  powers  of  his  office,  they  shall 
devolve  upon  the  associate  justice  who  is  first  in  precedence,  until 
such  disability  is  removed,  or  another  Chief  Justice  is  appointed  and 
duly  qualified.  This  provision  shall  apply  to  every  associate  justice 
who  succeeds  to  the  office  of  Chief  Justice. 

Salaries  of  justices 

-Sec.  218.  The  Chief  Justice  of  the  Supreme  Court  of  the  United 
States  shall  receive  the  sum  of  fifteen  thousand  dollars  a  year,  and 
the  justices  thereof  shall  receive  the  sum  of  fourteen  thousand  five 
hundred  dollars  a  year  each,  to  be  paid  monthly. 

Clerk,  marshal,  and  reporter 

Sec.  219.  The  Supreme  Court  shall  have  power  to  appoint  a 
clerk  and  a  marshal  for  said  court,  and  a  reporter  of  its  decisions. 

The  clerk  to  give  bond 

Sec.  220.  The  clerk  of  the  Supreme  Court  shall,  before  he  enters 
upon  the  execution  of  his  office,  give  bond,  with  sufficient  sureties, 
to  be  approved  by  the  court,  to  the  United  States,  in  the  sum  of  not 
less  than  five  thousand  and  not  more  than  twenty  thousand  dollars, 


678  APPENDIX 

to  be  determined  and  regulated  by  the  Attorney  General,  faithfully 
to  discharge  the  duties  of  his  office,  and  seasonably  to  record  the 
decrees,  judgments,  and  determinations  of  the  court.  The  Supreme 
Court  may  at  any  time,  upon  the  motion  of  the  Attorney  General,  to 
be  made  upon  thirty  days'  notice,  require  a  new  bond,  or  a  bond  for 
an  increased  amount  within  the  limits  above  prescribed:  and  the 
failure  of  the  clerk  to  execute  the  same  shall  vacate  his  office.  All 
bonds  given  by  the  clerk  shall,  after  approval,  be  recorded  in  his 
office,  and  copies  thereof  from  the  records,  certified  by  the  clerk 
under  seal  of  the  court,  shall  be  competent  evidence  in  any  court 
The  original  bonds  shall  be  filed  in  the  Department  of  Justice. 

Deputies  of  the  clerk 

Sec.  221.  One  or  more  deputies  of  the  clerk  of  the  Supreme  Court 
may  be  appointed  by  the  court  on  the  application  of  the  clerk,  and 
may  be  removed  at  the  pleasure  of  the  court.  In  case  of  the  death 
of  the  clerk,  his  deputy  or  deputies  shall,  unless  removed,  continue 
in  office  and  perform  the  duties  of  the  clerk  in  his  name  until  a 
clerk  is  appointed  and  qualified ;  and  for  the  defaults  or  misfeas- 
ances in  office  of  any  such  deputy,  whether  in  the  lifetime  of  the 
clerk  or  after  his  death,  the  clerk,  and  his  estate,  and  the  sureties 
on  his  official  bond  shall  be  liable;  and  his  executor  or  administrator 
shall  have  such  remedy  for  any  such  defaults  or  misfeasances  com- 
mitted after  his  death  as  the  clerk  would  be  entitled  to  if  the  same 
had  occurred  in  his  lifetime. 

Records  of  the  old  court  of  appeals 

Sec.  222.  The  records  and  proceedings  of  the  court  of  appeals, 
appointed  previous  to  the  adoption  of  the  present  Constitution,  shall 
be  kept  in  the  office  of  the  clerk  of  the  Supreme  Court,  who  shall 
give  copies  thereof  to  any  person  requiring  and  paying  for  them,  in 
the  manner  provided  by  law  for  giving  copies  of  the  records  and 
proceedings  of  the  Supreme  Court;  and  such  copies  shall  have  like 
faith  and  credit  with  all  other  proceedings  of  said  court. 

Tables  of  fees 

Sec.  223.  The  Supreme  Court  is  authorized  and  empowered  to 
prepare  the  tables  of  fees  to  be  charged  by  the  clerk  thereof. 

Marshal  of  the  Supreme  Court 

Sec.  224.  The  marshal  is  entitled  to  receive  a  salary  at  the  rate 
of  four  thousand  five  hundred  dollars  a  year.  He  shall  attend  the 
court  at  its  sessions ;  shall  serve  and  execute  all  process  and  orders 
issuing  from  it,  or  made  by  the  Chief  Justice  or  an  associate  jus- 
tice in  pursuance  of  law;  and  shall  take  charge  of  all  property  of 
the  United  States  used  by  the  court  or  its  members.  With  the  ap- 
proval of  the  Chief  Justice  he  may  appoint  assistants  and  messen- 
gers to  attend  the  court,  with  the  compensation  allowed  to  officers 
of  the  House  of  Representatives  of  similar  grade. 


THE    JUDICIAL    CODM  679 

Duties  of  the  reporter 

Sec.  225.  The  reporter  shall  cause  the  decisions  of  the  Supreme 
Court  to  be  printed  and  published  within  eight  months  after  they 
are  made ;  and  within  the  same  time  he  shall  deliver  three  hundred 
copies  of  the  volumes  of  said  reports  to  the  Attorney  General.  The 
reporter  shall,  in  any  year  when  he  is  so  directed  by  the  court,  cause 
to  be  printed  and  published  a  second  volume  of  said  decisions,  of 
which  he  shall  deliver  a  like  number  of  copies  in  like  manner  and 
time. 

Reporter's  salary  and  allowances 

Sec.  226.  The  reporter  shall  be  entitled  to  receive  from  the 
Treasury  an  annual  salary  of  four  thousand  five  hundred  dollars 
when  his  report  of  said  decisions  constitutes  one  volume,  and  an 
additional  sum  of  one  thousand  two  hundred  dollars  when,  by  di- 
rection of  the  court,  he  causes  to  be  printed  and  published  in  any 
year  a  second  volume ;  and  said  reporter  shall  be  annually  entitled 
to  clerk  hire  in  the  sum  of  one  thousand  two  hundred  dollars,  and 
to  office  rent,  stationery,  and  contingent  expenses  in  the  sum  of  six 
hundred  dollars:  Provided,  That  the  volumes  of  the  decisions  of 
the  court  heretofore  published  shall  be  furnished  by  the  reporter  to 
the  public  at  a  sum  not  exceeding  two  dollars  per  volume,  and  those 
hereafter  published  at  a  sum  not  exceeding  one  dollar  and  seventy- 
five  cents  per  volume;  and  the  number  of  volumes  now  required  to 
be  delivered  to  the  Attorney  General  shall  be  furnished  by  the  re- 
porter without  any  charge  therefor.  Said  salary  and  compensation, 
respectively,  shall  be  paid  only  when  he  causes  such  decisions  to  be 
printed,  published,  and  delivered  within  the  time  and  in  the  manner 
prescribed  by  law,  and  upon  the  condition  that  the  volumes  of  said 
reports  shall  be  sold  by  him  to  the  public  for  a  price  not  exceeding 
one  dollar  and  seventy-five  cents  a  volume. 

Distribution  of  reports  and  digests 

Sec.  227.  The  Attorney  General  shall  distribute  copies  of  the  Su- 
preme Court  reports,  as  follows:  To  the  President,  the  justices  of 
the  Supreme  Court,  the  judges  of  the  Commerce  Court,  the  judges 
of  the  Court  of  Customs  Appeals,  the  judges  of  the  circuit  courts  of 
appeals,  the  judges  of  the  district  courts,  the  judges  of  the  Court  of 
Claims,  the  judges  of  the  Court  of  Appeals  and  of  the  Supreme 
Court  of  the  District  of  Columbia,  the  judges  of  the  several  Terri- 
torial courts,  the  Secretary  of  State,  the  Secretary  of  the  Treasury, 
the  Secretary  of  War,  the  Secretary  of  the  Navy,  the  Secretary  of 
the  Interior,  the  Postmaster  General,  the  Attorney  General,  the 
Secretary  of  Agriculture,  the  Secretary  of  Commerce  and  Labor,  the 
Solicitor  General,  the  Assistant  to  the  Attorney  General,  each  As- 
sistant Attorney  General,  each  United  States  district  attorney,  each 
Assistant  Secretary  of  each  Executive  Department,  the  Assistant 
Postmasters  General,  the  Secretary  of  the  Senate  for  the  use  of  the 
Senate,  the  Clerk  of  the  House  of  Representatives  for  the  use  of  the 


680  APPENDIX 

House  of  Representatives,  the  Governors  of  the  Territories,  the  So- 
licitor for  the  Department  of  State,  the  Treasurer  of  the  United 
States,  the  Solicitor  of  the  Treasury,  the  Register  of  the  Treasury, 
the  Comptroller  of  the  Treasury,  the  Comptroller  of  the  Currency, 
the  Commissioner  of  Internal  Revenue,  the  Director  of  the  Mint, 
each  of  the  six  Auditors  in  the  Treasury  Department,  the  Judge 
Advocate  General,  War  Department,  the  Paymaster  General,  War 
Department,  the  Judge  Advocate  General,  Navy  Department,  the 
Commissioner  of  Indian  Affairs,  the  Commissioner  of  Pensions,  the 
Commissioner  of  the  General  Land  Office,  the  Commissioner  of  Pat- 
ents, the  Commissioner  of  Education,  the  Commissioner  of  Labor, 
the  Commissioner  of  Navigation,  the  Commissioner  of  Corporations, 
the  Commissioner  General  of  Immigration,  the  Chief  of  the  Bureau 
of  Manufactures,  the  Director  of  the  Geological  Survey,  the  Direc- 
tor of  the  Census,  the  Forester,  Department  of  Agriculture,  the  Pur- 
chasing Agent,  Post  Office  Department,  the  Interstate  Commerce 
Commission,  the  Clerk  of  the  Supreme  Court  of  the  United  States, 
the  Marshal  of  the  Supreme  Court  of  the  United  States,  the  Attor- 
ney for  the  District  of  Columbia,  the  Naval  Academy  at  Annapolis, 
the  Military  Academy  at  West  Point,  and  the  heads  of  such  other 
executive  offices  as  may  be  provided  by  law,  of  equal  grade  with 
any  of  said  offices,  each  one  copy;  to  the  Law  Library  of  the  Su- 
preme Court,  twenty-five  copies;  to  the  Law  Library  of  the  De- 
partment of  the  Interior,  two  copies ;  to  the  Law  Library  of  the 
Department  of  Justice,  two  copies;  to  the  Secretary  of  the  Senate 
for  the  use  of  the  committees  of  the  Senate,  twenty-five  copies;  to 
the  Clerk  of  the  House  of  Representatives  for  the  use  of  the  com- 
mittees of  the  House,  thirty  copies ;  to  the  Marshal  of  the  Supreme 
Court  of  the  United  States,  as  custodian  of  the  public  property 
used  by  the  court,  for  the  use  of  the  justices  thereof  in  the  confer- 
ence room,  robing  room,  and  court  room,  three  copies ;  to  the  Secre- 
tary of  War  for  the  use  of  the  proper  courts  and  officers  of  the 
Philippine  Islands  and  for  the  headquarters  of  military  depart- 
ments in  the  United  States,  twelve  copies;  and  to  each  of  the  places 
where  district  courts  of  the  United  States  are  now  holden,  includ- 
ing Hawaii,  and  Porto  Rico,  one  copy.  He  shall  also  distribute  one 
complete  set  of  said  reports,  and  one  set  of  the  digests  thereof,  to 
such  executive  officers  as  are  entitled  to  receive  said  reports  under 
this  section  and  have  not  already  received  them,  to  each  United 
States  judge  and  to  each  United  States  district  attorney  who  has 
not  received  a  set,  to  each  of  the  places  where  district  courts  are 
now  held  to  which  said  reports  have  not  been  distributed,  and  to 
each  of  the  places  at  which  a  district  court  may  hereafter  be  held, 
the  edition  of  said  reports  and  digests  to  be  selected  by  the  judge 
or  officer  receiving  them.  No  distribution  of  reports  and  digests 
under  this  section  shall  be  made  to  any  place  where  the  court  is 
held  in  a  building  not  owned  by  the  United  States,  unless  there  be 
at  such  place  a  United  States  officer  to  whose  responsible  custody 


THE    JUDICIAL    CODE  681 

they  can  be  committed.  The  clerks  of  said  courts  (except  the  Su- 
preme Court)  shall  in  all  cases  keep  said  reports  and  digest  for  the 
use  of  the  courts  and  of  the  officers  thereof.  Such  reports  and  di- 
gest shall  remain  the  property  of  the  United  States,  and  shall  be 
preserved  by  the  officers  above  named  and  by  them  turned  over  to 
their  successors  in  office. 

[Distribution  of  reports  to  libraries  of  circuit  courts  of  ap- 
peals] 

[Sec.  227a.]  *  *  *  That  the  Secretary  of  the  Interior  shall 
hereafter  distribute  the  Supreme  Court  Reports  to  the  libraries  of 
the  United  States  circuit  courts  of  appeals. 

Additional   reports    and    digests;    limitation    upon    cost;     esti- 
mates to  be  submitted  to   Congress   annually 

Sec.  228.  The  publishers  of  the  decisions  of  the  Supreme  Court 
shall  deliver  to  the  Attorney  General,  in  addition  to  the  three  hun- 
dred copies  delivered  by  the  Reporter,  such  number  of  copies  of  each 
report  heretofore  published,  as  the  Attorney  General  may  require, 
for  which  he  shall  pay  not  more  than  two  dollars  per  volume,  and 
such  number  of  copies  of  each  report  hereafter  published  as  he  may 
require,  for  which  he  shall  pay  not  more  than  one  dollar  and  seven- 
ty-five cents  per  volume.  The  Attorney  General  shall  include  in  his 
annual  estimates  submitted  to  Congress,  an  estimate  for  the  current 
volumes  of  such  reports,  and  also  for  the  additional  sets  of  reports 
and  digests  required  for  distribution  under  the  section  last  preced- 
ing. 

Distribution  of  Federal  Reporter,  etc.,  and  Digests 

Sec.  229.  The  Attorney  General  is  authorized  to  procure  complete 
sets  of  the  Federal  Reporter  or,  in  his  discretion,  other  publication 
containing  the  decisions  of  the  circuit  courts  of  appeals,  circuit 
courts,  and  district  courts,  and  digests  thereof,  and  also  future  vol- 
umes of  the  same  as  issued,  and  distribute  a  copy  of  each  such  re- 
ports and  digests  to  each  place  where  a  circuit  court  of  appeals,  or 
a  district  court,  is  now  or  may  hereafter  regularly  be  held,  and  to 
the  Supreme  Court  of  the  United  States,  the  Court  of  Claims,  the 
Court  of  Customs  Appeals,  the  Commerce  Court,  the  Court  of  Ap- 
peals and  the  Supreme  Court  of  the  District  of  Columbia,  the  Attor- 
ney General,  the  Solicitor  General,  the  Solicitor  of  the  Treasury, 
the  Assistant  Attorney  General  for  the  Department  of  the  Interior, 
the  Commissioner  of  Patents,  and  the  Interstate  Commerce  Com- 
mission ;  and  to  the  Secretary  of  the  Senate,  for  the  use  of  the  Sen- 
ate, and  to  the  Clerk  of  the  House  of  Representatives,  for  the  use 
of  the  House  of  Representatives,  not  more  than  three  sets  each. 
Whenever  any  such  court  room,  office,  or  officer  shall  have  a  partial 
or  complete  eet  of  any  such  reports,  or  digests,  already  purchased 
or  owned  by  the  United  States,  the  Attorney  General  shall  distribute 
to  such  'court  room,  office,  or  officer,  only  sufficient  volumes  to  make 


682  APPENDIX 

a  complete  set  thereof.  No  distribution  of  reports  or  digests  under 
this  section  shall  be  made  to  any  place  where  the  court  is  held  in  a 
building  not  owned  by  the  United  States,  unless  there  be  at  such 
place  a  United  States  officer  to  whose  responsible  custody  they  can 
be  committed.  The  clerks  of  the  courts  (except  the  Supreme  Court) 
to  which  the  reports  and  digests  are  distributed  under  this  section, 
shall  keep  such  reports  and  digests  for  the  use  of  the  courts  and 
the  officers  thereof.  All  reports  and  digests  distributed  under  the 
provisions  of  this  section  shall  be  and  remain  the  property  of  the 
United  States  and,  before  distribution,  shall  be  plainly  marked  on 
their  covers  with  the  words  "The  Property  of  the  United  States," 
and  shall  be  transmitted  by  the  officers  receiving  them  to  their  suc- 
cessors in  office.  Not  to  exceed  two  dollars  per  volume  shall  be 
paid  for  the  back  and  current  volumes  of  the  Federal  Reporter  or 
other  publication  purchased  under  the  provisions  of  this  section, 
and  not  to  exceed  five  dollars  per  volume  for  the  digest,  the  said 
money  to  be  disbursed  under  the  direction  of  the  Attorney  General ; 
and  the  Attorney  General  shall  include  in  his  annual  estimates 
submitted  to  Congress,  an  estimate  for  the  back  and  current  volumes 
of  such  reports  and  digests,  the  distribution  of  which  is  provided 
for  in  this  section. 

Terms 

Sec.  230.  The  Supreme  Court  shall  hold  at  the  seat  of  govern- 
ment, one  term  annually,  commencing  on  the  second  Monday  in  Oc- 
tober, and  such  adjourned  or  special  terms  as  it  may  find  neces- 
sary for  the  dispatch  of  business. 

Adjournment  for  -want  of  a  quorum 

Sec.  231.  If,  at  any  session  of  the  Supreme  Court,  a  quorum 
does  not  attend  on  the  day  appointed  for  holding  it,  the  justices  who 
do  attend  may  adjourn  the  court  from  day  to  day  for  twenty  days 
after  said  appointed  time,  unless  there  be  sooner  a  quorum.  If  a 
quorum  does  not  attend  within  said  twenty  days,  the  business  of 
the  court  shall  be  continued  over  till  the  next  appointed  session; 
and  if,  during  a  term,  after  a  quorum  has  assembled,  less  than  that 
number  attend  on  any  day,  the  justices  attending  may  adjourn  the 
court  from  day  to  day  until  there  is  a  quorum,  or  may  adjourn 
without  day. 

Certain  orders  made  by  less  than  quorum 

Sec.  232.  The  justices  attending  at  any  term,  when  less  than  a 
quorum  is  present,  may,  within  the  twenty  days  mentioned  in  the 
preceding  section,  make  all  necessary  orders  touching  any  suit,  pro- 
ceeding, or  process,  depending  in  or  returned  to  the  court,  prepara- 
tory to  the  hearing,  trial,  or  decision  thereof. 

Original  jurisdiction 

Sec.  233.     [See  ante,  p.  383.] 


THE    JUDICIAL    CODE  683 

Writs  of  prohibition  and  mandamus 

Sec.  234.  The  Supreme  Court  shall  have  power  to  issue  writs  of 
prohibition  to  the  district  courts,  when  proceeding  as  courts  of  ad- 
miralty and  maritime  jurisdiction ;  and  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed  under  the  authority  of  the  United  States,  or  to  persons 
holding  office  under  the  authority  of  the  United  States,  where  a 
State,  or  an  ambassador,  or  other  public  minister,  or  a  consul,  or 
vice  consul  is  a  party. 

Issues  of  fact 

Sec.  235.  The  trial  of  issues  of  fact  in  the  Supreme  Court,  in  all 
actions  at  law  against  citizens  of  the  United  States,  shall  be  by  jury. 

Appellate  jurisdiction 

Sec.  236.  The  Supreme  Court  shall  have  appellate  jurisdiction 
in  the  cases  hereinafter  specially  provided  for. 

Writs  of  error  from  judgments  and  decrees  of  State  courts 

Sec.  237.    [See  ante,  p.  527.] 

Appeals  and  writs  of  error  from  United  States  district  courts 

Sec.  238.     [See  ante,  pp.  473,  497.] 

Circuit    court    of  appeals   may    certify   questions   to    Supreme 
Court  for  instructions 

Sec.  239.     [See  ante,  pp.  471,  514.] 

Certiorari  to  circuit  court  of  appeals 

Sec.  240.    [See  ante,  pp.  472,  518.] 

Appeals  and  writs  of  error  in  other  cases 

Sec.  241.     [See  ante,  p.  520.] 

Appeals  from  Court  of  Claims 

Sec.  242.  An  appeal  to  the  Supreme  Court  shall  be  allowed  on 
behalf  of  the  United  States,  from  all  judgments  of  the  Court  of 
Claims  adverse  to  the  United  States,  and  on  behalf  of  the  plaintiff 
in  any  case  where  the  amount  in  controversy  exceeds  three  thou- 
sand dollars,  or  where  his  claim  is  forfeited  to  the  United  States 
by  the  judgment  of  said  court  as  provided  in  section  one  hundred 
and  seventy-two. 

Time  and  manner  of  appeals  from  the  Court  of  Claims 

Sec.  243.  All  appeals  from  the  Court  of  Claims  shall  be  taken 
within  ninety  days  after  the  judgment  is  rendered,  and  shall  be 
allowed  under  such  regulations  as  the  Supreme  Court  may  direct 

Writs  of  error  and  appeals  from  Supreme  Court  of  and  United 
States  district  court  for  Porto  Rico 

Sec.  244.  Writs  of  error  and  appeals  from  the  final  judgments 
and  decrees  of  the  supreme  court  of,  and  the  United  States  district 


684  APPENDIX 

court  for,  Porto  Rico,  may  be  taken  and  prosecuted  to  the  Supreme 
Court  of  the  United  States,  in  any  case  wherein  is  involved  the  va- 
lidity of  any  copyright,  or  in  which  is  drawn  in  question  the  valid- 
ity of  a  treaty  or  statute  of,  or  authority  exercised  under,  the  United 
States,  or  wherein  the  Constitution  of  the  United  States,  or  a  treaty 
thereof,  or  an  Act  of  Congress  is  brought  in  question  and  the  right 
claimed  thereunder  is  denied,  without  regard  to  the  ^urn  or  value 
of  the  matter  in  dispute ;  and  in  all  other  cases  in  which  the  sum 
or  value  of  the  matter  in  dispute,  exclusive  of  costs,  to  be  ascer- 
tained by  the  oath  of  either  party  or  of  other  competent  witnesses, 
exceeds  the  sum  or  value  of  five  thousand  dollars.  Such  writs  of 
error  and  appeals  shall  be  taken  within  the  same  time,  in  the  same 
manner,  and  under  the  same  regulations  as  writs  of  error  and  ap- 
peals are  taken  to  the  Supreme  Court  of  the  United  States  from 
the  district  courts. 

Writs  of  error  and  appeals  from  the  Supreme  Courts  of  Ari- 
zona and  New  Mexico 

Sec.  245.  Writs  of  error  and  appeals  from  the  final  Judgments 
and  decrees  of  the  supreme  courts  of  the  Territories  of  Arizona  and 
New  Mexico  may  be  taken  and  prosecuted  to  the  Supreme  Court  of 
the  United  States  in  any  case  wherein  is  involved  the  validity  of 
any  copyright,  or  in  which  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  authority  exercised  under,  the  United  States, 
without  regard  to  the  sum  or  value  of  the  matter  in  dispute ;  and 
in  all  other  cases  in  which  the  sum  or  value  of  the  matter  in  dis- 
pute, exclusive  of  costs,  to  be  ascertained  by  the  oath  of  either  party 
or  of  other  competent  witnesses,  exceeds  the  sum  or  value  of  five 
thousand  dollars. 

Writs  of  error  and  appeals  from  the  Supreme  Court  of  Hawaii 

Sec.  246.  Writs  of  error  and  appeals  from  the  final  judgments 
and  decrees  of  the  supreme  court  of  the  Territory  of  Hawaii  may 
be  taken  and  prosecuted  to  the  Supreme  Court  of  the  United  States, 
within  the  same  time,  in  the  same  manner,  under  the  same  regula- 
tions, and  in  the  same  classes  of  cases,  in  which  writs  of  error 
and  appeals  from  the  final  judgments  and  decrees  of  the  highest 
court  of  a  State  in  which  a  decision  in  the  suit  could  be  had,  may 
be  taken  and  prosecuted  to  the  Supreme  Court  of  the  United  States 
under  the  provisions  of  section  two  hundred  and  thirty-seven ;  and 
also  in  all  cases  wherein  the  amount  involved,  exclusive  of  costs, 
to  be  ascertained  by  the  oath  of  either  party  or  of  other  competent 
witnesses,  exceeds  the  sum  or  value  of  five  thousand  dollars. 

Appeals  and  writs  of  error  from  the  district  court  for  Alaska 
direct  to  Supreme  Court  in  certain  cases 

Sec,  247.  Appeals  and  writs  of  error  may  be  taken  and  prosecuted 
from  final  judgments  and  decrees  of  the  district  court  for  the  dis- 
trict of  Alaska  or  for  any  division  thereof,  direct  to  the  Supreme 


THE    JUDICIAL    CODE  685 

Court  of  the  United  States,  in  the  following  cases:  In  prize  cases ; 
and  in  all  cases  which  involve  the  construction  or  application  of  the 
Constitution  of  the  United  States,  or  in  which  the  constitutionality 
of  any  law  of  the  United  States  or  the  validity  or  construction  of 
any  treaty  made  under  its  authority  is  drawn  in  question,  or  in 
which  the  constitution  or  law  of  a  State  is  claimed  to  be  in  con- 
travention of  the  Constitution  of  the  United  States.  Such  writs 
of  error  and  appeal  shall  be  taken  within  the  same  time,  in  the 
same  manner,  and  under  the  same  regulations  as  writs  of  error 
and  appeals  are  taken  from  the  district  courts  to  the  Supreme 
Court. 

Appeals   and   writs   of  error   front   the    Supreme   Court  of   the 

Philippine   Islands 

Sec.  248.  The  Supreme  Court  of  the  United  States  shall  have  ju- 
risdiction to  review,  revise,  reverse,  modify,  or  affirm  the  final  judg- 
ments and  decrees  of  the  supreme  court  of  the  Philippine  Islands  in 
all  actions,  cases,  causes,  and  proceedings  now  pending  therein  or 
hereafter  determined  thereby,  in  which  the  Constitution,  or  any  stat- 
ute, treaty,  title,  right,  or  privilege  of  the  United  States  is  involved, 
or  in  causes  in  which  the  value  in  controversy  exceeds  twenty-five 
thousand  dollars,  or  in  which  the  title  or  possession  of  real  estate 
exceeding  in  value  the  sum  of  twenty-five  thousand  dollars,  to  be 
ascertained  by  the  oath  of  either  party  or  of  other  competent  wit- 
nesses, is  involved  or  brought  in  question;  and  such  final  judgments 
or  decrees  may  and  can  be  reviewed,  revised,  reversed,  modified,  or 
affirmed  by  said  Supreme  Court  on  appeal  or  writ  of  error  by  the 
party  aggrieved,  within  the  same  time,  in  the  same  manner,  under 
the  same  regulations,  and  by  the  same  procedure,  as  far  as  ap- 
plicable, as  the  final  judgments  and  decrees  of  the  district  courts 
of  the  United  States. 

Appeals  and  writs  of  error  when  a  Territory  becomes  a  State 

Sec.  249.  In  all  cases  where  the  judgment  or  decree  of  any  court 
of  a  territory  might  be  reviewed  by  the  Supreme  Court  on  writ  of 
error  or  appeal,  such  writ  of  error  or  appeal  may  be  taken,  within 
the  time  and  in  the  manner  provided  by  law,  notwithstanding  such 
Territory  has,  after  such  judgment  or  decree,  been  admitted  as  a 
State;  and  the  Supreme  Court  shall  direct  the  mandate  to  such 
court  as  the  nature  of  the  writ  of  error  or  appeal  requires. 

Appeals  and  writs  of  error  from  the  Court  of  Appeals  of  the 
District  of  Columbia 

Sec.  250.  Any  final  judgment  or  decree  of  the  court  of  appeals  of 
the  District  of  Columbia  may  be  reexamined  and  affirmed,  reversed, 
or  modified  by  the  Supreme  Court  of  the  United  States,  upon  writ 
of  error  or  appeal,  in  the  following  cases: 

First.  In  cases  in  which  the  jurisdiction  of  the  trial  court  is  in 
issue;  but  when  any  such  case  is  not  otherwise  reviewable  in  said 


686  APPENDIX 

Supreme  Court,  then  the  question  of  jurisdiction  alone  shall  be 
certified  to  said  Supreme  Court  for  decision. 

Second.  In  prize  cases. 

Third.  In  cases  involving  the  construction  or  application  of  the 
Constitution  of  the  United  States,  or  the  constitutionality  of  any 
law  of  the  United  States,  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority. 

Fourth.  In  cases  in  which  the  constitution,  or  any  law  of  a  State, 
is  claimed  to  be  in  contravention  of  the  Constitution  of  the  United 
States. 

Fifth.  In  cases  in  which  the  validity  of  any  authority  exercised 
under  the  United  States,  or  the  existence  or  scope  of  any  power  or 
duty  of  an  officer  of  the  United  States  is  drawn  in  question. 

Sixth.  In  cases  in  which  the  construction  of  any  law  of  the  United 
States  is  drawn  in  question  by  the  defendant 

Except  as  provided  in  the  next  succeeding  section,  the  judgments 
and  decrees  of  said  court  of  appeals  shall  be  final  in  all  cases  aris- 
ing under  the  patent  laws,  the  copyright  laws,  the  revenue  laws,  the 
criminal  laws,  and  in  admiralty  cases;  and  except  as  provided  in 
the  next  succeeding  section,  the  judgments  and  decrees  of  said  court 
of  appeals  shall  be  final  in  all  cases  not  reviewable  as  hereinbefore 
provided. 

Writs  of  error  and  appeals  shall  be  taken  within  the  same  time, 
in  the  same  manner,  and  under  the  same  regulations  as  writs  of 
error  and  appeals  are  taken  from  the  circuit  courts  of  appeals  to 
the  Supreme  Court  of  the  United  States. 

Certiorari  to  Court  of  Appeals,  District  of  Columbia 

Sec.  251.  In  any  case  in  which  the  judgment  or  decree  of  said 
court  of  appeals  is  made  final  by  the  section  last  preceding,  it  shall 
be  competent  for  the  Supreme  Court  of  the  United  States  to  re- 
quire, by  certiorari  or  otherwise,  any  such  case  to  be  certified  to  it 
for  its  review  and  determination,  with  the  same  power  and  author- 
ity in  the  case  as  if  it  had  been  carried  by  writ  of  error  or  appeal 
to  said  Supreme  Court.  It  shall  also  be  competent  for  said  court 
of  appeals,  in  any  case  in  which  its  judgment  or  decree  is  made  final 
under  the  section  last  preceding,  at  any  time  to  certify  to  the  Su- 
preme Court  of  the  United  States  any  questions  or  propositions  of 
law  concerning  which  it  desires  the  instruction  of  that  court  for  their 
proper  decision ;  and  thereupon  the  Supreme  Court  may  either  give 
its  instruction  on  the  questions  and  propositions  certified  to  it, 
which  shall  be  binding  upon  said  court  of  appeals  in  such  case,  or 
it  may  require  that  the  whole  record  and  cause  be  sent  up  to  it  for 
its  consideration,  and  thereupon  shall  decide  the  whole  matter  in 
controversy  in  the  same  manner  as  if  it  had  been  brought  there 
for  review  by  writ  of  error  or  appeal. 

Appellate  jurisdiction  under  the  bankruptcy  act 
Sec.  252.     [See  ante,  p.  523.] 


THE    JUDICIAL    CODE 


687 


Precedence  of  writs  of  error  to  State  courts 

Sec.  253.  Cases  on  writ  of  error  to  revise  the  judgment  of  a 
State  court  in  any  criminal  case  shall  have  precedence  on  the  docket 
of  the  Supreme  Court,  of  all  cases  to  which  the  Government  of  the 
United  States  is  not  a  party,  excepting  only  such  cases  as  the  court, 
in  its  discretion,  may  decide  to  be  of  public  importance. 

Cost  of  printing  records 

Sec.  254.  There  shall  be  taxed  against  the  losing  party  in  each 
and  every  cause  pending  in  the  Supreme  Court  the  cost  of  printing 
the  record  in  such  case,  except  when  the  judgment  is  against  the 
United  States. 

Women   may  be  admitted  to  practice 

Sec.  255.  Any  woman  who  shall  have  been  a  member  of  the  bar 
of  the  highest  court  of  any  State  or  Territory,  or  of  the  court  of 
appeals  of  the  District  of  Columbia,  for  the  space  of  three  years, 
and  shall  have  maintained  a  good  standing  before  such  court,  and 
who  shall  be  a  person  of  good  moral  character,  shall,  on  motion,  and 
the  production  of  such  record,  be  admitted  to  practice  before  the 
Supreme  Court  of  the  United  States. 


CHAPTER  ELEVEN 
PROVISIONS  COMMON  TO  MORE  THAN  ONE   COURT 


Sec. 

256.  Cases   in   which   jurisdiction   of 

United  States  courts  shall  be 
exclusive  of  State  courts. 

257.  Oath  of  United  States  judges. 

258.  Judges  prohibited  from  practic- 

ing law. 

259.  Traveling  expenses,  etc.,  of  cir- 

cuit justices  and  circuit  and 
district  judges. 

260.  Salary  of  judges  after  resigna- 

tion. 

261.  Writes  of  ne  exeat. 

262.  Power  to  issue  writs. 

263.  Temporary  restraining  orders. 

264.  Injunctions;       in     what      cases 

judge  may  grant. 

265.  Injunctions  to  stay  proceedings 

in  State  courts. 


Sec. 

266.  Injunctions  based  upon  alleged 

unconstitutionality  of  State 
statutes;  when  and  by  whom 
may  be  granted. 

267.  When    suits   in   equity   may   be 

maintained. 

268.  Power  to  administer  oaths  and 

punish  contempts. 

269.  New  trials. 

270.  Power  to    hold   to    security  for 

the  peace  and  good  behavior. 

271.  Power    to    enforce    awards    of 

foreign  consuls,  etc.,  in  cer- 
tain cases. 

272.  Parties  may  manage  their  caus- 

es personally  or  by  counsel. 

273.  Certain  officers  forbidden  to  act 

as  attorneys. 

274.  Penalty  for  violating  preceding 

section. 


Cases  in  which  jurisdiction  of  United  States  courts  shall  be 
exclusive  of  State  courts 

Sec.  256.  The  jurisdiction  vested  in  the  courts  of  the  United 
States  in  the  cases  and  proceedings  hereinafter  mentioned,  shall  be 
exclusive  of  the  courts  of  the  several  States: 


688  APPENDIX 

First.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States. 

Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  under 
the  laws  of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction; 
saving  to  suitors,  in  all  cases,  the  right  of  a  common-law  remedy, 
where  the  common  law  is  competent  to  give  it. 

Fourth.  Of  all  seizures  under  the  laws  of  the  United  States,  on 
land  or  on  waters  not  within  admiralty  and  maritime  jurisdiction ; 
of  all  prizes  brought  into  the  United  States;  and  of  all  proceedings 
for  the  condemnation  of  property  taken  as  prize. 

Fifth.  Of  all  cases  arising  under  the  patent-right,  or  copyright 
laws  of  the  United  States. 

Sixth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  State  is 
a  party,  except  between  a  State  and  its  citizens,  or  between  a  State 
and  citizens  of  other  States,  or  aliens. 

Eighth.  Of  all  suits  and  proceedings  against  ambassadors,  or 
other  public  ministers,  or  their  domestics,  or  domestic  servants,  or 
against  consuls  or  vice-consuls. 

Oath  of  United  States  judges 

Sec.  257.  The  justices  of  the  Supreme  Court,  the  circuit  judges, 
and  the  district  judges,  hereafter  appointed,  shall  take  the  following 
oath  before  they  proceed  to  perform  the  duties  of  their  respective 

offices:    "I, ,  do  solemnly  swear  (or  affirm)  that  I  will 

administer  justice  without  respect  to  persons,  and  do  equal  right 
to  the  poor  and  to  the  rich,  and  that  I  will  faithfully  and  impar- 
tially discharge  and  perform  all  the  duties  incumbent  upon  me  as 

according  to   the  best  of  my  abilities  and  understanding, 

agreeably  to  the  Constitution  and  laws  of  the  United  States:  So 
help  me  God." 

Judges  prohibited  from  practicing  law 

Sec.  258.  It  shall  not  be  lawful  for  any  judge  appointed  under 
the  authority  of  the  United  States  to  exercise  the  profession  or  em- 
ployment of  counsel  or  attorney,  or  to  be  engaged  in  the  practice 
of  the  law.  Any  person  offending  against  the  prohibition  of  this 
section  shall  be  deemed  guilty  of  a  high  misdemeanor. 

Traveling   expenses,    etc.,   of  circuit   justices   and   circuit   and 
district  judges 

Sec.  259.  The  circuit  justices,  the  circuit  and  district  judges  of 
the  United  States,  and  the  judges  of  the  district  courts  of  the  Unit- 
ed States  in  Alaska,  Hawaii,  and  Porto  Rico,  shall  each  be  allowed 
and  paid  his  necessary  expenses  of  travel,  and  his  reasonable  ex- 
penses (not  to  exceed  ten  dollars  per  day)  actually  incurred  for 
maintenance,  consequent  upon  his  attending  court  or  transacting 
other  official  business  in  pursuance  of  law  at  any  place  other  than 


THE    JUDICIAL    CODE  689 

his  official  place  of  residence,  said  expenses  to  be  paid  by  the  mar- 
shal of  the  district  in  which  such  court  is  held  or  official  business 
transacted,  upon  the  written  certificate  of  the  justice  or  judge.  The 
official  place  of  residence  of  each  justice  and  of  each  circuit  judge 
while  assigned  to  the  Commerce  Court  shall  be  at  Washington;  and 
the  official  place  of  residence  of  each  circuit  and  district  judge,  and 
of  each  judge  of  the  district  courts  of  the  United  States  in  Alaska, 
Hawaii,  and  Porto  Rico,  shall  be  at  that  place  nearest  his  actual 
residence  at  which  either  a  circuit  court  of  appeals  or  a  district 
court  is  regularly  held.  Every  such  judge  shall,  upon  his  appoint- 
ment, and  from  time  to  time  thereafter  whenever  he  may  change 
his  official  residence,  in  writing  notify  the  Department  of  Justice  of 
his  official  place  of  residence. 

Salary  of  judges  after  resignation 

Sec.  260.  When  any  judge  of  any  court  of  the  United  States  ap- 
pointed to  hold  his  office  during  good  behavior  resigns  his  office, 
after  having  held  a  commission  or  commissions  as  judge  of  any 
such  court  or  courts  at  least  ten  years  continuously,  and  having 
attained  the  age  of  seventy  years,  he  shall,  during  the  residue  of 
his  natural  life,  receive  the  salary  which  is  payable  at  the  time  of 
his  retirement  for  the  office  that  he  held  at  the  time  of  his  resigna- 
tion. 

Writs  of  ne  exeat 

Sec.  261.  Writs  of  ne  exeat  may  be  granted  by  any  justice  of 
the  Supreme  Court,  in  cases  where  they  might  be  granted  by  the 
Supreme  Court;  and  by  any  district  judge,  in  cases  where  they 
might  be  granted  by  the  district  court  of  which  he  is  a  judge  But 
no  writ  of  ne  exeat  shall  be  granted  unless  a  suit  in  equity  is  com- 
menced, and  satisfactory  proof  is  made  to  the  court  or  judge  grant- 
ing the  same  that  the  defendant  designs  quickly  to  depart  from  the 
United  States. 

Power  to  issue  writs 

Sec.  262.    [See  ante,  p.  493.] 

Temporary  restraining  orders 

Sec.  263.     [See  ante,  p.  428.] 

Injunctions;    in    what    cases   judge   may    grant 

Sec.  264.    [See  ante,  p.  429.] 

Injunctions  to  stay  proceedings  in  State  courts 

Sec  265.    [See  ante,  p.  430.] 

Injunctions  based  upon  alleged   unconstitntionality   of   State 
statutes;  when  and  by  whom  may  be  granted 

Sec.  266.    (See  ante,  p.  432.] 

When  suits  in  equity  may  be  maintained 

Sec.  267.     [See  ante,  p.  418.] 
HUGHES  FED.PB.(2o  ED.) — 44 


690  .  APPENDIX 

Power  to  administer  oaths  and  punish   contempts 

Sec.  268.  The  said  courts  shall  have  power  to  impose  and  admin- 
ister all  necessary  oaths,  and  to  punish,  by  fine  or  imprisonment,  at 
the  discretion  of  the  court,  contempts  of  their  authority:  Provided, 
That  such  power  to  punish  contempts  shall  not  be  construed  to  ex- 
tend to  any  cases  except  the  misbehavior  of  any  person  in  their  pres- 
ence, or  so  near  thereto  as  to  obstruct  the  administration  of  justice, 
the  misbehavior  of  any  of  the  officers  of  said  courts  in  their  offi- 
cial transactions,  and  the  disobedience  or  resistance  by  any  such  of- 
ficer, or  by  any  party,  juror,  witness,  or  other  person  to  any  lawful 
writ,  process,  order,  rule,  decree,  or  command  of  the  said  courts. 

New  trials 

Sec.  269.     [See  ante,  p.  411.] 

Power  to  hold  to  security  for  the  peace  and  good  behavior 

Sec.  270.  The  judges  of  the  Supreme  Court  and  of  the  circuit 
courts  of  appeals  and  district  courts,  United  States  commissioners, 
and  the  judges  and  other  magistrates  of  the  several  States,  who  are 
or  may  be  authorized  by  law  to  make  arrests  for  offenses  against 
the  United  States,  shall  have  the  like  authority  to  hold  to  security 
of  the  peace  and  for  good  behavior,  in  cases  arising  under  the  Con- 
stitution and  laws  of  the  United  States,  as  may  be  lawfully  exer- 
cised by  any  judge  or  justice  of  the  peace  of  the  respective  States, 
in  cases  cognizable  before  them. 

Power   to  enforce  awards  of  foreign  consuls,   etc.,  in  certain 
cases 

Sec.  271.  The  district  courts  and  the  United  States  commission- 
ers shall  have  power  to  carry  into  effect,  according  to  the  true  in- 
tent and  meaning  thereof,  the  award  or  arbitration  or  decree  of 
any  consul,  vice  consul,  or  commercial  agent  of  any  foreign  na- 
tion, made  or  rendered  by  virtue  of  authority  conferred  on  him  as 
such  consul,  vice  consul,  or  commercial  agent,  to  sit  as  judge  or 
arbitrator  in  such  differences  as  may  arise  between  the  captains 
and  crews  of  the  vessels  belonging  to  the  nation  whose  interests  are 
committed  to  his  charge,  application  for  the  exercise  of  such  power 
being  first  made  to  such  court  or  commissioner,  by  petition  of  such 
consul,  vice  consul,  or  commercial  agent.  And  said  courts  and 
commissioners  may  issue  all  proper  remedial  process,  mesne  and 
final,  to  carry  into  full  effect  such  award,  arbitration,  or  decree, 
and  to  enforce  obedience  thereto  by  imprisonment  in  the  jail  or 
other  place  of  confinement  in  the  district  in  which  the  United 
States  may  lawfully  imprison  any  person  arrested  under  the  au- 
thority of  the  United  States,  until  such  award,  arbitration,  or  de- 
cree is  complied  with,  or  the  parties  are  otherwise  discharged  there- 
from, by  the  consent  in  writing  of  such  consul,  vice  consul,  or  com- 
mercial agent,  or  his  successor  in  office,  or  by  the  authority  of  the 
foreign  government  appointing  such  consul,  vice  consul,  or  com- 


THE    JUDICIAL    CODE  691 

mercial  agent:  Provided,  however,  That  the  expenses  of  the  said 
imprisonment  and  maintenance  of  the  prisoners,  and  the  cost  of 
the  proceedings,  shall  be  borne  by  such  foreign  government,  or  by 
its  consul,  vice  consul,  or  commercial  agent  requiring  such  imprison- 
ment. The  marshals  of  the  United  States  shall  serve  all  such  pro- 
cess, and  do  all  other  acts  necessary  and  proper  to  carry  into  effect 
the  premises,  under  the  authority  of  the  said  courts  and  commis- 
sioners. 

Parties  may  manage  their  causes  personally  or  by  counsel 

Sec.  272.  In  all  the  courts  of  the  United  States  the  parties  may 
plead  and  manage  their  own  causes  personally,  or  by  the  assistance 
of  such  counsel  or  attorneys  at  law  as,  by  the  rules  of  the  said 
courts,  respectively,  are  permitted  to  manage  and  conduct  causes 
therein. 

Certain  officers  forbidden  to  act  as  attorneys 

Sec.  273.  No  clerk,  or  assistant  or  deputy  clerk,  of  any  Territo- 
rial, district,  or  circuit  court  of  appeals,  or  of  the  Court  of  Claims, 
or  of  the  Supreme  Court  of  the  United  States,  or  marshal  or  deputy 
marshal  of  the  United  States  within  the  district  for  which  he  is 
appointed,  shall  act  as  a  solicitor,  proctor,  attorney,  or  counsel  in 
any  cause  depending  in  any  of  said  courts,  or  in  any  district  for 
which  he  is  acting  as  such  officer. 

Penalty  for  violating  preceding  section 

Sec.  274.  Whoever  shall  violate  the  provisions  of  the  preceding 
section  shall  be  stricken  from  the  roll  of  attorneys  by  the  court 
upon  complaint,  upon  which  the  respondent  shall  have  due  notice 
and  be  heard  in  his  defense;  and  in  the  case  of  a  marshal  or  deputy 
marshal  so  acting,  he  shall  be  recommended  by  the  court  for  dis- 
missal from  office. 


CHAPTER  TWELVE 
JURIES 


Sec. 

275.  Qualifications  and  exemptions  of 

jurors. 

276.  Jurors,  how  drawn. 

277.  Jurors,  how  to  be  apportioned  in 

the  district. 

278.  Race  or  color  not  to  exclude. 

279.  Venire,  how  issued  and  served. 

280.  Talesmen  for  petit  juries. 

281.  Special  juries. 

282.  Number  of  grand  jurors. 

Qualifications  and  exemptions  of  jurors 

Sec.  275.     Jurors  to  serve  in  the  courts  of  the  United  States,  in 
each  State  respectively,  shall  have  the  same  qualifications,  subject 


Sec. 

283.  Foreman  of  grand  jury. 

284.  Grand  juries,   when  summoned. 

285.  Discharge  of  grand   juries. 

286.  Jurors  not  to  serve  more  than 

once  a  year. 

287.  Challenges. 

288.  Persons  disqualified  for  service 

on    jury    in    prosecutions    for 
polygamy,    etc. 


692 


APPENDIX 


to  the  provisions  hereinafter  contained,  and  be  entitled  to  the  same 
exemptions,  as  jurors  of  the  highest  court  of  law  in  such  State  may 
have  and  be  entitled  to  at  the  time  when  such  jurors  for  service 
in  the  courts  of  the  United  States  are  summoned. 

Juror g,  how  drawn 

Sec.  276.  All  such  jurors,  grand  and  petit,  including  those  sum- 
moned during  the  session  of  the  court,  shall  be  publicly  drawn  from 
a  box  containing,  at  the  time  of  each  drawing,  the  names  of  not 
less  than  three  hundred  persons,  possessing  the  qualifications  pre- 
scribed in  the  section  last  preceding,  which  names  shall  have  been 
placed  therein  by  the  clerk  of  such  court  and  a  commissioner,  to 
be  appointed  by  the  judge  thereof,  or  by  the  judge  senior  in  commis- 
sion in  districts  having  more  than  one  judge,  which  commissioner 
shall  be  a  citizen  of  good  standing,  residing  in  the  district  in  which 
such  court  is  held,  and  a  well-known  member  of  the  principal  po- 
litical party  in  the  district  in  which  the  court  is  held  opposing  that 
to  which  the  clerk  may  belong,  the  clerk  and  said  commissioner 
each  to  place  one  name  in  said  box  alternately,  without  reference  to 
party  affiliations  until  the  whole  number  required  shall  be  placed 
therein. 

Jurors,  how  to  be  apportioned  in  the  district 

Sec.  277.  Jurors  shall  be  returned  from  such  parts  of  the  district, 
from  time  to  time,  as  the  court  shall  direct,  so  as  to  be  most  favor- 
able to  an  impartial  trial,  and  so  as  not  to  incur  an  unnecessary 
expense,  or  unduly  burden  the  citizens  of  any  part  of  the  district 
with  such  service. 

Race  or  color  not  to  exclude 

Sec.  278.  No  citizen  possessing  all  other  qualifications  which  are 
or  may  be  prescribed  by  law  shall  be  disqualified  for  service  as  grand 
or  petit  juror  in  any  court  of  the  United  States  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

Venire,  how  issued  and  served 

Sec.  279.  Writs  of  venire  facias,  when  directed  by  the  court,  shall 
issue  from  the  clerk's  office,  and  shall  be  served  and  returned  by 
the  marshal  in  person,  or  by  his  deputy;  or,  in  case  the  marshal  or 
his  deputy  is  not  an  indifferent  person,  or  is  interested  in  the  event 
of  the  cause,  by  such  fit  person  as  may  be  specially  appointed  for 
that  purpose  by  the  court,  who  shall  administer  to  him  an  oath  that 
he  will  truly  and  impartially  serve  and  return  the  writ.  Any  per- 
son named  in  such  writ  who  resides  elsewhere  than  at  the  place  at 
which  the  court  is  held,  shall  be  served  by  the  marshal  mailing  a 
copy  thereof  to  such  person  commanding  him  to  attend  as  a  juror 
at  a  time  and  place  designated  therein,  which  copy  shall  be  regis- 
tered and  deposited  in  the  post  office  addressed  to  such  person  at  his 
usual  post  office  address.  And  the  receipt  of  the  person  so  ad- 


THE    JUDICIAL    CODE  693 

dressed  for  such  registered  copy  shall  be  regarded  as  personal 
service  of  such  writ  upon  such  person,  and  no  mileage  shall  be  al- 
lowed for  the  service  of  such  person.  The  postage  and  registry  fee 
shall  be  paid  by  the  marshal  and  allowed  him  in  the  settlement  of 
his  accounts. 

Talesmen  for  petit  juries 

Sec.  280.  When,  from  challenges  or  otherwise,  there  is  not  a  petit 
jury  to  determine  any  civil  or  criminal  cause,  the  marshal  or  his 
deputy  shall,  by  order  of  the  court  in  which  such  defect  of  jurors 
happens,  return  jurymen  from  the  bystanders  sufficient  to  complete 
the  panel ;  and  when  the  marshal  or  his  deputy  is  disqualified  as 
aforesaid,  jurors  may  be  so  returned  by  such  disinterested  person 
as  the  court  may  appoint,  and  such  person  shall  be  sworn,  as  pro- 
vided in  the  preceding  section. 

Special  juries 

Sec.  281.  When  special  juries  are  ordered  in  any  district  court, 
they  shall  be  returned  by  the  marshal  in  the  same  manner  and  form 
as  is  required  in  such  cases  by  the  laws  of  the  several  States. 

Number  of  grand  jurors 

Sec.  282.  Every  grand  jury  impaneled  before  any  district  court 
shall  consist  of  not  less  than  sixteen  nor  more  than  twenty-three 
persons.  If  of  the  persons  summoned  less  than  sixteen  attend,  they 
shall  be  placed  on  the  grand  jury,  and  the  court  shall  order  the 
marshal  to  summon,  either  immediately  or  for  a  day  fixed,  from 
the  body  of  the  district,  and  not  from  the  bystanders,  a  sufficient 
number  of  persons  to  complete  the  grand  jury.  And  whenever  a 
challenge  to  a  grand  juror  is  allowed,  and  there  are  not  in  attend- 
ance other  jurors  sufficient  to  complete  the  grand  jury,  the  court 
shall  make  a  like  order  to  the  marshal  to  summon  a  sufficient  num- 
ber of  persons  for  that  purpose. 

Foreman  of  grand  jury 

Sec.  283.  From  the  persons  summoned  and  accepted  as  grand 
jurors,  the  court  shall  appoint  the  foreman,  who  shall  have  power 
to  administer  oaths  and  affirmations  to  witnesses  appearing  before 
the  grand  jury. 

Grand  juries,  when  summoned 

Sec.  284.  No  grand  jury  shall  be  summoned  to  attend  any  dis- 
trict court  unless  the  judge  thereof,  in  his  own  discretion  or  upon 
a  notification  by  the  district  attorney  that  such  jury  will  be  needed, 
orders  a  venire  to  issue  therefor.  If  the  United  States  attorney  for 
any  district  which  has  a  city  or  borough  containing  at  least  three 
hundred  thousand  inhabitants  shall  certify  in  writing  to  the  district 
judge,  or  the  senior  district  judge  of  the  district,  that  the  exigen- 
cies of  the  public  service  require  it,  the  judge  may,  in  his  discre- 


694  APPENDIX 

tion,  also  order  a  venire  to  issue  for  a  second  grand  jury.  And 
said  court  may  in  term  order  a  grand  jury  to  be  summoned  at  such 
time,  and  to  serve  such  time  as  it  may  direct,  whenever,  in  its 
judgment,  it  may  be  proper  to  do  so.  But  nothing  herein  shall 
operate  to  extend  beyond  the  time  permitted  by  law  the  imprison- 
ment before  indictment  found  of  a  person  accused  of  a  crime  or 
offense,  or  the  time  during  which  a  person  so  accused  may  be  held 
under  recognizance  before  indictment  found. 

Discharge  of  grand  juries 

Sec.  285.  The  district  courts,  the  district  courts  of  the  Territories, 
and  the  Supreme  Court  of  the  District  of  Columbia  may  discharge 
their  grand  juries  whenever  they  deem  a  continuance  of  the  sessions 
of  such  juries  unnecessary. 

Jurors  not  to  serve  more  than  once  a  year 

Sec.  286.  No  person  shall  serve  as  a  petit  juror  in  any  district 
court  more  than  one  term  in  a  year;  and  it  shall  be  sufficient  cause 
of  challenge  to  any  juror  called  to  be  sworn  in  any  cause  that  he  has 
been  summoned  and  attended  said  court  as  a  juror  at  any  term  of 
said  court  held  within  one  year  prior  to  the  time  of  such  challenge. 

Challenges 

Sec.  287.  When  the  offense  charged  is  treason  or  a  capital  offense, 
the  defendant  shall  be  entitled  to  twenty  and  the  United  States  to 
six  peremptory  challenges.  On  the  trial  of  any  other  felony,  the 
defendant  shall  be  entitled  to  ten  and  the  United  States  to  six  per- 
emptory challenges ;  and  in  all  other  cases,  civil  and  criminal,  each 
party  shall  be  entitled  to  three  peremptory  challenges;  and  in  all 
cases  where  there  are  several  defendants  or  several  plaintiffs,  the 
parties  on  each  side  shall  be  deemed  a  single  party  for  the  purposes 
of  all  challenges  under  this  section.  All  challenges,  whether  to  the 
array  or  panel,  or  to  individual  jurors  for  cause  or  favor,  shall  be 
tried  by  the  court  without  the  aid  of  triers. 

Persons   disqualified   for   service   on  jury  in   prosecutions    for 
polygamy,  etc. 

Sec.  288.  In  any  prosecution  for  bigamy,  polygamy,  or  unlawful 
cohabitation,  under  any  statute  of  the  United  States,  it  shall  be  suf- 
ficient cause  of  challenge  to  any  person  drawn  or  summoned  as  a 
juryman  or  talesman — 

First,  that  he  is  or  has  been  living  in  the  practice  of  bigamy,  polyg- 
amy, or  unlawful  cohabitation  with  more  than  one  woman,  or  that 
he  is  or  has  been  guilty  of  an  offense  punishable  either  by  sections 
one  or  three  of  an  Act  entitled  "An  Act  to  amend  section  fifty-three 
hundred  and  fifty-two  of  the  Revised  Statutes  of  the  United  States, 
in  reference  to  bigamy,  and  for  other  purposes,"  approved  March 
twenty-second,  eighteen  hundred  and  eighty-two,  or  by  section  fifty- 
three  hundred  and  fifty-two  of  the  Revised  Statutes  of  the  United 


THE    JUDICIAL    CODE 


695 


States,  or  the  Act  of  July  first,  eighteen  hundred  and  sixty-two,  en- 
titled "An  Act  to  punish  and  prevent  the  practice  of  polygamy  in 
the  Territories  of  the  United  States  and  other  places,  and  disap- 
proving and  annulling  certain  Acts  of  the  legislative  assembly  of 
the  territory  of  Utah"  ;  or 

Second,  that  he  believes  it  right  for  a  man  to  have  more  than  one 
living  and  undivorced  wife  at  the  same  time,  or  to  live  in  the  prac- 
tice of  cohabiting  with  more  than  one  woman. 

Any  person  appearing  or  offered  as  a  juror  or  talesman,  and  chal- 
lenged on  either  of  the  foregoing  grounds,  may  be  questioned  on  his 
oath  as  to  the  existence  of  any  such  cause  of  challenge ;  and  other 
evidence  may  be  introduced  bearing  upon  the  question  raised  by  such 
challenge ;  and  this  question  shall  be  tried  by  the  court. 

But  as  to  the  first  ground  of  challenge  before  mentioned,  the  per- 
son challenged  shall  not  be  bound  to  answer  if  he  shall  say  upon 
his  oath  that  he  declines  on  the  ground  that  his  answer  may  tend  to 
criminate  himself;  and  if  he  shall  answer  as  to  said  first  ground, 
his  answer  shall  not  be  given  in  evidence  in  any  criminal  prosecu- 
tion against  him  for  any  offense  above  named;  but  if  he  declines 
to  answer  on  any  ground,  he  shall  be  rejected  as  incompetent. 


CHAPTER  THIRTEEN 
GENERAL  PROVISIONS 


Sec. 

289.  Circuit    courts    abolished;     rec- 

ords of  to   be  transferred   to 
district  courts. 

290.  Suits   pending  in  circuit  courts 

to  be  disposed  of   in  district 
courts. 

291.  Powers    and    duties    of    circuit 

courts   imposed   upon   district 
courts. 

292.  References   to    laws    revised    in 

this   act  deemed   to   refer   to 
sections  of  act. 


Sec. 

293.  Sections  1  to  5,    Revised   Stat- 

utes, to  govern  construction 
of  this  act. 

294.  Laws  revised  in  this  act  to  be 

construed  as  continuations  of 
existing  laws. 

295.  Inference     of     legislative     con- 

struction not  to  be  drawn  by 
reason  of  arrangement  of  sec- 
tions. 

296.  Act  may  be  designated  as  "The 

Judicial  Code." 


Circuit  courts  abolished;    records  of  to  be  transferred  to  dis- 
trict courts 

Sec.  289.  The  circuit  courts  of  the  United  States,  upon  the  taking 
effect  of  this  Act,  shall  be,  and  hereby  are,  abolished ;  and  there- 
upon, on  said  date,  the  clerks  of  said  courts  shall  deliver  to  the 
clerks  of  the  district  courts  of  the  United  States  for  their  respective 
districts  all  the  journals,  dockets,  books,  files,  records,  and  other 
books  and  papers  of  or  belonging  to  or  in  any  manner  connected 
with  said  circuit  courts;  and  shall  also  on  said  date  deliver  to  the 
clerks  of  said  district  courts  all  moneys,  from  whatever  source  re- 


696  APPENDIX 

ceived,  then  remaining  in  their  hands  or  under  their  control  as 
clerks  of  said  circuit  courts,  or  received  by  them  by  virtue  of  their 
said  offices.  The  journals,  dockets,  books,  files,  records,  and  other 
books  and  papers  so  delivered  to  the  clerks  of  the  several  district 
courts  shall  be  and  remain  a  part  of  the  official  records  of  said  dis- 
trict courts,  and  copies  thereof,  when  certified  under  the  hand  and 
seal  of  the  clerk  of  the  district  court,  shall  be  received  as  evidence 
equally  with  the  originals  thereof;  and  the  clerks  of  the  several 
district  courts  shall  have  the  same  authority  to  exercise  all  the 
powers  and  to  perform  all  the  duties  with  respect  thereto  as  the 
clerks  of  the  several  circuit  courts  had  prior  to  the  taking  effect  of 
this  Act 

Suits  pending  in  circuit  courts  to  be  disposed  of  in  district 
conrts 

Sec.  290.  All  suits  and  proceedings  pending  in  said  circuit  courts 
on  the  date  of  the  taking  effect  of  this  Act,  whether  originally 
brought  therein  or  certified  thereto  from  the  district  courts,  shall 
thereupon  and  thereafter  be  proceeded  with  and  disposed  of  in  the 
district  courts  in  the  same  manner  and  with  the  same  effect  as  if 
originally  begun  therein,  the  record  thereof  being  entered  in  the  rec- 
ords of  the  circuit  courts  so  transferred  as  above  provided. 

Powers    and    duties   of    circuit    conrts    imposed    upon    district 
courts 

Sec.  291.     [See  ante,  pp.  197,  401,  579.] 

References  to  laws  revised  in  this  act  deemed  to  refer  to  sec- 
tions of  act 

Sec.  292.  Wherever,  in  any  law  not  contained  within  this  Act,  a 
reference  is  made  to  any  law  revised  or  embraced  herein,  such  ref- 
erence, upon  the  taking  effect  hereof,  shall  be  construed  to  refer  to 
the  section  of  this  Act  into  which  has  been  carried  or  revised  the 
provision  of  law  to  which  reference  is  so  made. 

Sections   1   to  5,  Revised  Statutes,  to  govern  construction  of 
this  act 

Sec.  293.  The  provisions  of  sections  one  to  five,  both  inclusive,  of 
the  Revised  Statutes,  shall  apply  to  and  govern  the  construction  of 
the  provisions  of  this  Act.  The  words  "this  title,"  wherever  they 
occur  herein,  shall  be  construed  to  mean  this  Act. 

Laws  revised  in  this  act  to  be  construed  as   continuations  of 
existing  laws 

Sec.  294.  The  provisions  of  this  Act,  so  far  as  they  are  substan- 
tially the  same  as  existing  statutes,  shall  be  construed  as  continua- 
tions thereof,  and  not  as  new  enactments,  and  there  shall  be  no  im- 
plication of  a  change  of  intent  by  reason  of  a  change  of  words  in 
such  statute,  unless  such  change  of  intent  shall  be  clearly  manifest. 


THE    JUDICIAL    CODE 


697 


Inference  of  legislative  construction  not  to  be  drawn  by  rea- 
son of  arrangement  of  sections 

Sec.  295.  The  arrangement  and  classification  of  the  several  sec- 
tions of  this  Act  have  been  made  for  the  purpose  of  a  more  con- 
venient and  orderly  arrangement  of  the  same,  and  therefore  no  in- 
ference or  presumption  of  a  legislative  construction  is  to  be  drawn 
by  reason  of  the  chapter  under  which  any  particular  section  is 
placed. 

Act  may  be  designated  as  "The  Judicial  Code" 

Sec.  296.  This  Act  may  be  designated  and  cited  as  "The  Judicial 
Code." 


CHAPTER  FOURTEEN 
REPEALING  PROVISIONS 


Sec. 

297.  Sections,  acts,  and  parts  of  acts 

repealed. 

298.  Repeal   not  to  affect  tenure  of 

office,  or  salary,  or  compensa- 
tion of  incumbents,  etc. 

299.  Accrued    rights,    etc.,    not    af- 

fected. 


Sec. 

300.  Offenses  committed,  and  penal- 

ties, forfeitures,  and  liabilities 
incurred,  how  to  be  prosecut- 
ed and  enforced. 

301.  Date  this  act  shall  be  effective. 


Sections,  acts,  and  parts  of  actc  repealed 

Sec.  297.  The  following  sections  of  the  Revised  Statutes  and 
Acts  and  parts  of  Acts  are  hereby  repealed: 

Sections  five  hundred  and  thirty  to  five  hundred  and  sixty,  both 
inclusive;  sections  five  hundred  and  sixty-two  to  five  hundred  and 
sixty-four,  both  inclusive;  sections  five  hundred  and  sixty-seven  to 
six  hundred  and  twenty-seven,  both  inclusive;  sections  six  hundred 
and  twenty-nine  to  six  hundred  and  forty-seven,  both  inclusive ;  sec- 
tions six  hundred  and  fifty  to  six  hundred  and  ninety-seven,  both 
inclusive;  section  six  hundred  and  ninety -nine;  sections  seven  hun- 
dred and  two  to  seven  hundred  and  fourteen,  both  inclusive;  sec- 
tions seven  hundred  and  sixteen  to  seven  hundred  and  twenty,  both 
inclusive ;  section  seven  hundred  and  twenty-three ;  sections  seven 
hundred  and  twenty-five  to  seven  hundred  and  forty-nine,  both  in- 
clusive ;  sections  eight  hundred  to  eight  hundred  and  twenty-two, 
both  inclusive;  sections  ten  hundred  and  forty-nine  to  ten  hundred 
and  eighty-eight,  both  inclusive;  sections  ten  hundred  and  ninety- 
one  to  ten  hundred  and  ninety-three,  both  inclusive,  of  the  Revised 
Statutes. 

"An  Act  to  determine  the  Jurisdiction  of  circuit  courts  of  the 
United  States  and  to  regulate  the  removal  of  causes  from  State 
courts,  and  for  other  purposes,"  approved  March  third,  eighteen 
hundred  and  seventy-five. 


698  APPENDIX 

Section  five  of  an  Act  entitled  "An  Act  to  amend  section  fifty- 
three  hundred  and  fifty-two  of  the  Revised  Statutes  of  the  United 
States,  in  reference  to  bigamy,  and  for  other  purposes,"  approved 
March  twenty-second,  eighteen  hundred  and  eighty -two;  but  sec- 
tions six,  seven,  and  eight  of  said  Act,  and  sections  one,  two,  and 
twenty-six  of  an  Act  entitled  "An  Act  to  amend  an  Act  entitled  'An 
Act  to  amend  section  fifty-three  hundred  and  fifty-two  of  the  Re- 
vised Statutes  of  the  United  States,  in  reference  to  bigamy,  and  for 
other  purposes,'  approved  March  twenty-second,  eighteen  hundred 
and  eighty-two,"  approved  March  third,  eighteen  hundred  and  eighty- 
seven,  are  hereby  continued  in  force. 

"An  Act  to  afford  assistance  and  relief  to  Congress  and  the  execu- 
tive departments  in  the  investigation  of  claims  and  demands  against 
the  Government,"  approved  March  third,  eighteen  hundred  and 
eighty-three. 

"An  Act  regulating  appeals  from  the  supreme  court  of  the  Dis- 
trict of  Columbia  and  the  supreme  courts  of  the  several  Territories," 
approved  March  third,  eighteen  hundred  and  eighty-five. 

"An  Act  to  provide  for  the  bringing  of  suits  against  the  Govern- 
ment of  the  United  States,"  approved  March  third,  eighteen  hundred 
and  eighty-seven,  except  sections  four,  five,  six,  seven,  and  ten 
thereof. 

Sections  one,  two,  three,  four,  six,  and  seven  of  an  Act  entitled 
"An  Act  to  correct  the  enrollment  of  an  Act  approved  March  third, 
eighteen  hundred  and  eighty-seven,  entitled  'An  Act  to  amend  sec- 
tions one,  two,  three,  and  ten  of  an  Act  to  determine  the  jurisdic- 
tion of  the  circuit  courts  of  the  United  States,  and  to  regulate  the 
removal  of  causes  from  State  courts,  and  for  other  purposes,'  ap- 
proved March  third,  eighteen  hundred  and  seventy-five,"  approved 
August  thirteenth,  eighteen  hundred  and  eighty-eight. 

"An  Act  to  withdraw  from  the  Supreme  Court  jurisdiction  of  crim- 
inal cases  not  capital  and  confer  the  same  on  the  circuit  courts  of 
appeals,"  approved  January  twentieth,  eighteen  hundred  and  ninety- 
seven. 

"An  Act  to  amend  sections  one  and  two  of  the  Act  of  March  third, 
eighteen  hundred  and  eighty-seven,  Twenty-fourth  Statutes  at  Large, 
chapter  three  hundred  and  fifty-nine,"  approved  June  twenty-sev- 
enth, eighteen  hundred  and  ninety-eight. 

"An  Act  to  amend  the  seventh  section  of  the  Act  entitled  'An  Act 
to  establish  circuit  courts  of  appeals  and  to  define  and  regulate  in 
certain  cases  the  jurisdiction  of  the  courts  of  the  United  States,  and 
for  other  purposes,'  approved  March  third,  eighteen  hundred  and 
ninety-one,  and  the  several  Acts  amendatory  thereto,"  approved 
April  fourteenth,  nineteen  hundred  and  six. 

All  Acts  and  parts  of  Acts  authorizing  the  appointment  of  United 
States  circuit  or  district  judges,  or  creating  or  changing  judicial 
circuits,  or  judicial  districts  or  divisions  thereof,  or  fixing  or  chang- 


THE    JUDICIAL    CODE  699 

ing  the  times  or  places  of  holding  court  therein,  enacted  prior  to 
February  first,  nineteen  hundred  and  eleven. 

Sections  one,  two,  three,  four,  five,  the  first  paragraph  of  section 
six,  and  section  seventeen  of  an  Act  entitled  "An  Act  to  create  a 
commerce  court,  and  to  amend  an  Act  entitled  'An  Act  to  regulate 
commerce,'  approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  as  heretofore  amended,  and  for  other  purposes,"  approved 
June  eighteenth,  nineteen  hundred  and  ten. 

Also  all  other  Acts  and  parts  of  Acts,  in  so  far  as  they  are  em- 
braced within  and  superseded  by  this  Act,  are  hereby  repealed ;  the 
remaining  portions  thereof  to  be  and  remain  in  force  with  the  same 
effect  and  to  the  same  extent  as  if  this  Act  had  not  been  passed. 

Repeal  not  to  affect  tenure  of  office,  or  salary,  or  compensa- 
tion of  incumbents,  etc. 

Sec.  298.  The  repeal  of  existing  laws  providing  for  the  appoint- 
ment of  judges  and  other  officers  mentioned  in  this  Act,  or  affecting 
the  organization  of  the  courts,  shall  not  be  construed  to  affect  the 
tenure  of  office  of  the  incumbents  (except  the  office  be  abolished), 
but  they  shall  continue  to  hold  their  respective  offices  during  the 
terms  for  which  appointed,  unless  removed  as  provided  by  law;  nor 
(except  the  office  be  abolished)  shall  such  repeal  affect  the  salary 
or  fees  or  compensation  of  any  officer  or  person  holding  office  or  po- 
sition by  virtue  of  any  law. 

Accrued  rights,  etc.,  not  affected 

Sec.  299.  The  repeal  of  existing  laws,  or  the  amendments  there- 
of, embraced  in  this  Act,  shall  not  affect  any  act  done,  or  any  right 
accruing  or  accrued,  or  any  suit  or  proceeding,  including  those  pend- 
ing on  writ  of  error,  appeal,  certificate,  or  writ  of  certiorarl,  in  any 
appellate  court  referred  to  or  included  within,  the  provisions  of  this 
Act,  pending  at  the  time  of  the  taking  effect  of  this  Act,  but  all  such 
suits  and  proceedings,  and  suits  and  proceedings  for  causes  arising 
or  acts  done  prior  to  such  date,  may  be  commenced  and  prosecuted 
within  the  same  time,  and  with  the  same  effect,  as  if  said  repeal  or 
amendments  had  not  been  made. 

Offenses    committed,    and   penalties,    forfeitures,    and    liabili- 
ties incurred,  how  to  be  prosecuted  and  enforced 

Sec.  300.  All  offenses  committed,  and  all  penalties,  forfeitures,  or 
liabilities  incurred  prior  to  the  taking  effect  hereof,  under  any  law 
embraced  in,  amended,  or  repealed  by  this  Act,  may  be  prosecuted 
and  punished,  or  sued  for  and  recovered,  in  the  district  courts,  in 
the  same  manner  and  with  the  same  effect  as  if  this  Act  had  not 
been  passed. 

Date  this  act  shall  be  effective 

Sec.  301.  This  Act  shall  take  effect  and  be  in  force  on  and  after 
January  first,  nineteen  hundred  and  twelve. 


THE  COMMERCE  COURT 

THE  PORTION  OF  THE  DEFICIENCY  APPBOPBIATION  BILL  OF  OCTOBER 
22,  1913,  ABOLISHING  IT 


The  Commerce  Court,  created  and  established  by  the  Act  entitled 
"An  Act  to  create  a  Commerce  Court  and  to  amend  the  Act  entitled 
'An  Act  to  regulate  commerce,'  approved  February  fourth,  eighteen 
hundred  and  eighty-seven,  as  heretofore  amended,  and  for  other 
purposes,"  approved  June  eighteenth,  nineteen  hundred  and  ten,  is 
abolished  from  and  after  December  thirty-first,  nineteen  hundred 
and  thirteen,  and  the  jurisdiction  vested  in  said  Commerce  Court 
by  said  Act  is  transferred  to  and  vested  in  the  several  district  courts 
of  the  United  States,  and  all  Acts  or  parts  of  Acts  in  so  far  as  they 
relate  to  the  establishment  of  the  Commerce  Court  are  repealed. 
Nothing  herein  contained  shall  be  deemed  to  affect  the  tenure  of 
any  of  the  judges  now  acting  as  circuit  judges  by  appointment  un- 
der the  terms  of  said  Act,  but  such  judges  shall  continue  to  act 
under  assignment,  as  in  the  said  Act  provided,  as  judges  of  the  dis- 
trict courts  and  circuit  courts  of  appeals;  and  in  the  event  of  and 
on  the  death,  resignation,  or  removal  from  office  of  any  of  such 
judges,  his  office  is  hereby  abolished  and  no  successor  to  him  shall 
be  appointed. 

The  venue  of  any  suit  hereafter  brought  to  enforce,  suspend,  or 
set  aside,  in  whole  or  in  part,  any  order  of  the  Interstate  Commerce 
Commission  shall  be  in  the  judicial  district  wherein  is  the  residence 
of  the  party  or  any  of  the  parties  upon  whose  petition  the  order 
was  made,  except  that  where  the  order  does  not  relate  to  trans- 
portation or  is  not  made  upon  the  petition  of  any  party  the  venue 
shall  be  in  the  district  where  the  matter  complained  of  in  the  peti- 
tion before  the  commission  arises,  and  except  that  where  the  order 
does  not  relate  either  to  transportation  or  to  a  matter  so  complained 
of  before  the  commission  the  matter  covered  by  the  order  shall  be 
deemed  to  arise  in  the  district  where  one  of  the  petitioners  in  court 
has  either  its  principal  office  or  its  principal  operating  office.  In 
case  such  transportation  relates  to  a  through  shipment  the  term 
"destination"  shall  be  construed  as  meaning  final  destination  of 
such  shipment 

The  procedure  in  the  district  courts  in  respect  to  cases  of  which 

jurisdiction  is  conferred  upon  them  by  this  Act  shall  be  the  same  as 

that  heretofore  prevailing   in   the   Commerce   Court.    The  orders, 

writs,  and  processes  of  the  district  courts  may  in  these  cases  run,  be 

HUGHES  FED.PB.(2n  ED.)          (701) 


702  APPENDIX 

served,  and  be  returnable  anywhere  in  the  United  States;  and  the 
right  of  appeal  from  the  district  courts  in  such  cases  shall  be  the 
same  as  the  right  of  appeal  heretofore  prevailing  under  existing  law 
from  the  Commerce  Court.  No  interlocutory  injunction  suspending 
or  restraining  the  enforcement,  operation,  or  execution  of,  or  setting 
aside,  in  whole  or  in  part,  any  order  made  or  entered  by  the  Inter- 
state Commerce  Commission  shall  be  issued  or  granted  by  any  dis- 
trict court  of  the  United  States,  or  by  any  judge  thereof,  or  by 
any  circuit  judge  acting  as  district  judge,  unless  the  application  for 
the  same  shall  be  presented  to  a  circuit  or  district  judge,  and  shall 
be  heard  and  determined  by  three  judges,  of  whom  at  least  one 
shall  be  a  circuit  judge,  and  unless  a  majority  of  said  three  judges 
shall  concur  in  granting  such  application.  When  such  application 
as  aforesaid  is  presented  to  a  judge,  he  shall  immediately  call  to 
his  assistance  to  hear  and  determine  the  application  two  other  judg- 
es. Said  application  shall  not  be  heard  or  determined  before  at 
least  five  days'  notice  of  the  hearing  has  been  given  to  the  Inter- 
state Commerce  Commission,  to  the  Attorney  General  of  the  United 
States,  and  to  such  other  persons  as  may  be  defendants  in  the  suit: 
Provided,  That  in  cases  where  irreparable  damage  would  otherwise 
ensue  to  the  petitioner,  a  majority  of  said  three  judges  concurring, 
may,  on  hearing,  after  not  less  than  three  days'  notice  to  the  Inter- 
state Commerce  Commission  and  the  Attorney  General,  allow  a  tem- 
porary stay  or  suspension,  in  whole  or  in  part,  of  the  operation  of 
the  order  of  the  Interstate  Commerce  Commission  for  not  more  than 
sixty  days  rrom  the  date  of  the  order  of  said  judges  pending  the 
application  for  the  order  or  injunction,  in  which  case  the  said  order 
shall  contain  a  specific  finding,  based  upon  evidence  submitted  to  the 
judges  making  the  order  and  identified  by  reference  thereto,  that 
such  irreparable  damage  would  result  to  the  petitioner  and  speci- 
fying the  nature  of  the  damage.  The  said  judges  may,  at  the  time 
of  hearing  such  application,  upon  a  like  finding,  continue  the  tem- 
porary stay  or  suspension  in  whole  or  in  part  until  decision  upon 
the  application.  The  hearing  upon  such  application  for  an  interlocu- 
tory injunction  shall  be  given  precedence  and  shall  be  in  every  way 
expedited  and  be  assigned  for  a  hearing  at  the  earliest  practicable 
day  after  the  expiration  of  the  notice  hereinbefore  provided  for. 
An  appeal  may  be  taken  direct  to  the  Supreme  Court  of  the  United 
States  from  the  order  granting  or  denying,  after  notice  and  hearing, 
an  interlocutory  injunction,  in  such  case  if  such  appeal  be  taken 
within  thirty  days  after  the  order,  in  respect  to  which  complaint  is 
made,  is  granted  or  refused ;  and  upon  the  final  hearing  of  any  suit 
brought  to  suspend  or  set  aside,  in  whole  or  in  part,  any  order  of 
said  commission  the  same  requirement  as  to  judges  and  the  same 
procedure  as  to  expedition  and  appeal  shall  apply.  A  final  judg- 
ment or  decree  of  the  district  court  may  be  reviewed  by  the  Su- 
preme Court  of  the  United  States  if  appeal  to  the  Supreme  Court 
be  taken  by  an  aggrieved  party  within  sixty  days  after  the  entry 


THE   COMMERCE   COURT  703 

of  such  final  judgment  or  decree,  and  such  appeals  may  be  taken 
in  like  manner  as  appeals  are  taken  under  existing  law  in  equity 
cases.  And  in  such  case  the  notice  required  shall  be  served  upon 
the  defendants  in  the  case  and  upon  the  attorney  general  of  the 
State.  All  cases  pending  in  the  Commerce  Court  at  the  date  of  the 
passage  of  this  Act  shall  be  deemed  pending  in  and  be  transferred 
forthwith  to  said  district  courts  except  cases  which  may  previously 
have  been  submitted  to  that  court  for  final  decree  and  the  latter  to 
be  transferred  to  the  district  courts  if  not  decided  by  the  Commerce 
Court  before  December  first,  nineteen  hundred  and  thirteen,  and 
all  cases  wherein  injunctions  or  other  orders  or  decrees,  manda- 
tory or  otherwise,  have  been  directed  or  entered  prior  to  the  aboli- 
tion of  the  said  court  shall  be  transferred  forthwith  to  said  district 
courts,  which  shall  have  jurisdiction  to  proceed  therewith  and  to 
enforce  said  injunctions,  orders,  or  decrees.  Each  of  said  cases  and 
all  the  records,  papers,  and  proceedings  shall  be  transferred  to  the 
district  court  wherein  it  might  have  been  filed  at  the  time  it  was 
filed  in  the  Commerce  Court  if  this  Act  had  then  been  in  effect; 
and  if  it  might  have  been  filed  in  any  one  of  two  or  more  district 
courts  it  shall  be  transferred  to  that  one  of  said  district  courts 
which  may  be  designated  by  the  petitioner  or  petitioners  in  said 
case,  or,  upon  failure  of  said  petitioners  to  act  in  the  premises  with- 
in thirty  days  after  the  passage  of  this  Act,  to  such  one  of  said 
district  courts  as  may  be  designated  by  the  judges  of  the  Commerce 
Court.  The  judges  of  the  Commerce  Court  shall  have  authority, 
and  are  hereby  directed,  to  make  any  and  all  orders  and  to  take 
any  other  action  necessary  to  transfer  as  aforesaid  the  cases  and  all 
the  records,  papers,  and  proceedings  then  pending  in  the  Commerce 
Court  to  said  district  courts.  All  administrative  books,  dockets, 
files,  and  all  papers  of  the  Commerce  Court  not  transferred  as  part 
of  the  record  of  any  particular  case  shall  be  lodged  in  the  Depart- 
ment of  Justice.  All  furniture,  carpets,  and  other  property  of  the 
Commerce  Court  is  turned  over  to  the  Department  of  Justice  and 
the  Attorney  General  is  authorized  to  supply  such  portion  thereof 
as  in  his  judgment  may  be  proper  and  necessary  to  the  United 
States  Board  of  Mediation  and  Conciliation. 

Any  case  hereafter  remanded  from  the  Supreme  Court  which,  but 
for  the  passage  of  this  Act,  would  have  been  remanded  to  the  Com- 
merce Court,  shall  be  remanded  to  a  district  court,  designated  by 
the  Supreme  Court,  wherein  it  might  have  been  instituted  at  the 
time  it  was  instituted  in  the  Commerce  Court  if  this  Act  had  then 
been  in  effect,  and  thereafter  such  district  court  shall  take  all  nec- 
essary and  proper  proceedings  in  such  case  in  accordance  with  law 
and  such  mandate,  order,  or  decree  therein  as  may  be  made  by  said 
Supreme  Court. 

All  laws  or  parts  of  laws  inconsistent  with  the  foregoing  provi- 
sions relating  to  the  Commerce  Court,  are  repealed. 


TABLE  OF  CASES  CITED 


[THE  FIGURES  REFER  TO  PAGES] 


Abraham   v.    North   German  Ins. 

Co.,  436. 
Acord     v.     Western     Pocahontas 

Corp.,  288,  441,  464. 
Adams  v.  Shirk,  283,  412. 
Adams  v.  Terrell,  98. 
Addyston  Pipe  &  Steel  Co.  v.  U. 

S.,  195. 

Adler,  In  re,  486. 
Adler  v.   United  States,  62. 
Agnew  v.  United  States,  52. 
A.  J.  Phillips  Co.  v.  Grand  Trunk 

Western  R.  Co.,  488. 
Alabama  Great  Southern  R.   Co. 

v.  Thompson,  333,  370. 
Albany  &  R.  Iron  &  Steel  Co.  v. 

Lundberg,  397. 
Alberty  v.  United  States,  59. 
Alderson,  In  re,  135. 
Aldrich  v.  ^tna  Ins.  Co.,  555. 
Alkire   Grocery   Co.   v.   Richesin, 

232. 

Allen  v.  Massey,  154. 
Allen  v.  United  States,  65. 
Allen-West     Commission     Co.     v. 

Bra  shear,  259. 
Alliance,    The,   492. 
Allis  v.  United  States,  65. 
Allis  Co.  v.  Withlacoochee,  443. 
Allison  v.  United  States,  60. 
Allnut  v.  Lancaster,  256. 
Alsop  v.  Conway,  234. 
Altman,  In  re,  101. 
Altaian  &  Co.  v.  United   States, 

512. 


Alton  Water  Co.  v.  Brown,  462. 

A.  L.  Wolff  &  Co.  v.  Choctaw,  O. 
&  G.  R.  Co.,  237. 

Ambler  v.  Eppinger,  281. 

American  Agr.  Chemical  Co.  v. 
Brinkley,  98. 

American  Baptist  Home  Mission 
Soc.  v.  Stewart,  221. 

American  Bridge  Co.  v.  Peden, 
412. 

American  Cereal  Co.  v.  Eli  Petti- 
john  Cereal  Co.,  427. 

American  Colortype  Co.  v.  Con- 
tinental Colortype  Co.,  283. 

American  Const.  Co.  v.  Jackson- 
ville, T.  &  K.  W.  R.  Co.,  467, 
519. 

American  Creosote  Works  v.  C. 
Lembcke  &  Co.,  390. 

American  Exp.  '  Co.  v.  Michigan, 
530. 

American  Guarantee  &  Security 
Co.  of  California,  In  re,  117. 

American  Smelting  &  Refining  Co. 
v.  Godfrey,  232. 

American  Sugar  Refining  Co.  v. 
New  Orleans,  479,  490. 

American  Telephone  &  Telegraph 
Co.  of  Alabama  v.  New  Decatur, 
239. 

American  Waterworks  &  Guaran- 
tee Co.  v.  Water  Co.,  281. 

Ames  v.  Kansas,  222,  238,  383. 

Ames  v.    Moir,  180. 

Amy  v.  Manning,  342. 

Amy  v.  Watertbwn,  394. 

Andersen  v.  Treat,  214. 


HUGHES  FED.PB.(2n  ED.) — 45       (705) 


706 


CASES   CITED 


[The  figures  refer  to  pages] 


Andersen  v.  United  States,  44,  47. 

Anderson  v.  Appleton,  378. 

Anderson  v.  Blakesly,  244. 

Anderson  v.  Moyer,  520. 

Anderson  v.  Sharp,  321. 

Anderson  v.  United  Realty  Co., 
374. 

Anderson  v.  United  States,  195. 

Andrews  v.  Swartz,  207. 

Andrews  v.  United  States,  60,  65. 

Anglo-American  Land  Mortgage  & 
Agency  Co.  v.  Lombard,  14. 

Anglo-American  Provision  Co.  v. 
Provision  Co.,  477,  479. 

Anglo-California  Bank  v.  United 
States,  492. 

Annie  Faxon,  The,  492. 

Antigo  Screen  Door  Co.,  In  re, 
484. 

A.  Overholt  &  Co.  v.  German- 
American  Ins.  Co.,  366. 

Appel,  In  re,  217. 

Appleby  v.  Buffalo,  540. 

Ar buckle  v.  Blackburn,  522. 

Arkansas  v.  Kansas  &  T.  Coal  Co., 
236,  315. 

Arkansas  v.  Schlierholz,  502. 

Arkansas  Southern  R.  Co.  v.  Ger- 
man Nat.  Bank,  541. 

Armstrong  v.  Kansas  City  South- 
ern R.  Co.,  324,  334,  341. 

Armstrong  Cork  Co.  v.  Merchants' 
Refrigerating  Co.,  10. 

Arredondo  v.  Cuebas  y  Arrendon- 
do,  438. 

Arrowsmith  v.  Gleason,  224,  419. 

Arrowsmith  v.  Harinoning,  541. 

Ashe  v.  Union  Cent.  Life  Ins.  Co., 
372. 

Ashley  v.  Board  of  Sup'rs  of 
Presque  Isle  County,  287. 

Atchison,  T.  &  S.  F  R.  Co.  v.  Gilli- 
land,  266. 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Phil- 
lips, 259. 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Sow- 
ers, 9. 


Atlanta,  K.  &  N.  R.  Co.  v.  South- 
ern R.  Co.,  303. 

Atlantic  Coast  Line  R.  Co.  v.  Dun- 
ning, 251. 

Atlantic  Coast  Line  R.  Co.  v.  Riv- 
erside Mills,  79. 

Audubon  v.  Shufeldt,  136. 

Austin  v.  Riley,  438. 

Auten  v.  United  States  Nat.  Bank, 
226,  523. 

Avent  v.  Deep  River  Lumber  Co., 
304,  367. 

Ayres  v.  Polsdorfer,  479,  519. 

Ayres  v.  Watson,  365. 

B 

Bacon,  In  re,  167. 

Bacon  v.  Rives,  322. 

Bacon  v.  Texas,  532,  535. 

Badger  v.  Badger,  422. 

Baez,  In  re,  214,  215. 

Baglin  v.  Cusenier  Co.,  242. 

Bailey  v.  Alabama,  81. 

Bain,  Ex  parte,  46,  205. 

Baiz,  In  re,  82,  387. 

Baker  v.  Grice,  210. 

Baker-Ricketson  Co.,  In  re,  112, 

116. 

Baldwin  v.  Hale,  90. 
Baldwin  v.  Railroad  Co.,  253. 
Balkam  v.  Woodstock  Iron  Co.,  14. 
Ball  v.  United  States,  23,  37,  43, 

54,   55. 

Ballew  v.  United  States,  66. 
Ballinger,  Ex  parte,  25. 
Ballinger  v.  United  States,  196. 
Baltimore  &  O.  R.  Co.  v.  Bates, 

371. 
Baltimore  &  O.  R.  Co.  y.  Baugh. 

19. 
Baltimore  &  O.  R.  Co.  v.  Harris, 

251. 

Baltimore  &  O.  R.  Co.  v.  Inter- 
state Commerce  Commission, 

513. 
Baltimore  &  O.  R.  Co.  v.  Koontz, 

251,  377. 


CASES  CITED 


707 


[The  figures  refer  to  pages] 


Baltimore   &    O.    R.    Co.    v.    Mc- 

Laughlin,  250. 
Baltimore  &  O.  R.  Co.  v.  United 

States    ex    rel.    Pitcairn    Coal 

Co.,  296. 
Baltimore  &  O.  S.  R.  Co.  v.  United 

States,  231. 

Bamberger  v.  Terry,  399. 
Bankers'    Mut.    Casualty    Co.    v. 

Minneapolis,  St  P.  &  S.  S.  M. 

R.  Co.,  522. 
Bank    of    United    States    v.    De- 

veaux,  249. 

Banks  v.  Manchester,  448. 
Bannon  v.  United  States,  41,  45. 
Barber  v.  Pittsburg,  Ft.  W.  &  C. 

R.  Co.,  16. 
Bardes  v.  First  Nat.   Bank,  155, 

546. 

Barling  v.  Bank,  280. 
Barnes  v.  Pampel,  483. 
Barnes  v.  Telegraph  Co.,  268. 
Barnes  v.  Trees,  437. 
Barney    v.    Baltimore,    244,    246, 

257. 

Barney  v.  Globe  Bank,  282. 
Barney  v.  Latham,  338. 
Barrager,  In  re,  141. 
Barringtou  v.  Missouri,  533. 
Barren  v.  Burnside,  305. 
Barrow   S.   S.  Co.   v.   Kane,  261, 

267,  394. 

Barry,  In  re,  387. 
Barry  v.  Mercein,  232. 
Barstow  v.  Becket,  428. 
Bartemeyer  v.  Iowa,  551,  571. 
Bartlett,  Ex  parte,  208. 
Bartlett  v.  Gates,  343. 
Basch,  In  re,  181. 
Bates,  In  re,  135. 
Bates  Mach.  Co.,  In  re,  116. 
Baughman,  In  re,  101. 
Baumau  v.  Feist,  176. 
Bauman  v.  Ross,  200. 
Baumgardner  v.   Bono  Fertilizer 

Co.,  304. 
Baumgarten    v.    Alliance    Assur. 

Co.,  of  London,  361. 


Bauserrnan  v.  Blunt,  9. 

Bausman  v.  Dixou,  242. 

Bayonne,  The,  502. 

Bean,  In  re,  101. 

Bear,  In  re,  105. 

Beatty  v.  Wilson,  396. 

Beck  v.  United  States,  53. 

Becker,  In  re,  126,  175. 

Beckerford,  In  re,  89. 

Bedingfield,  In  re,  105,  106. 

Bein  v.  Heath,  419. 

Belden,  In  re,  162. 

Bellaire  v.  Baltimore  &  O.  R.  Co., 
331. 

Benchley  v.  Gilbert,  349. 

Bender  v.  Pennsylvania  Co.,  381. 

Benites  v.  Hampton,  553. 

Benjamin  v.  New  Orleans,  522. 

Bennett  v.  Butterworth,  390. 

Bennett  v.  Hoefner,  438. 

Benson  v.  Henkel,  35. 

Berea  College  v.  Kentucky,  541. 

Bergen,  In  re,  416. 

Berkowitz,  In  re,  141,  217. 

Berry  v.  St.  Louis  &  S.  F.  R.  Co., 
334. 

Berryman  v.  Board  of  Trustees 
of  Whitman  College,  233. 

Betancourt  v.  Association,  262. 

B.  H.  Gladding  Co.,  In  re,  165. 

Bigby  v.  United  States,  185,  191. 

Bigler  v.  Waller,  554. 

Big  Vein  Coal  Co.  v.  Read,  275, 
395. 

Bimberg,  In  re,  181. 

Birdseye  v.  Shaeffer,  381. 

Birkett  v.  Bank,  180. 

Bishop  v.  Averill,  261. 

Black,  In  re,  166,  174. 

Blackburn  v.  Blackburn,  328. 

Blacklock  v.  United  States,  428. 

Blair  v.  Chicago,  281,  287. 

Blair  v.  Ostrander,  415. 

Blake  v.  McKim,  322. 

Blake  v.  Pine  Mountain  Iron  & 
Coal  Co.,  293. 

Blake,  Moffit  &  Towne  v.  Valen- 
tine, 86. 


708 


CASES  CITED 


[The  figures  refer  to  pages] 


Blalock,  In  re,  174,  176. 
Blassengame  v.  Boyd,  455. 
Blitz  v.  United  States,  48. 
Block  v.  Darling,  230. 
Block  v.  Rice,  147. 
Blodgett,  Ex  parte,  210. 
Bluefields  S.  S.  Co.  v.  State,  266. 
Blumenthal  v.  Craig,  245,  247. 
Blythe  v.  Hinckley,  435,  438,  476, 

542. 

Blythe  Co.  v.  Hinckley,  465. 
Board    of    Coin'rs    of    Delaware 

County  v.  Diebold  Safe  &  Lock 

Co.,  322. 
Board  of  Coin'rs  of  Kearney  Co. 

v.  Vandriss,  230,  231. 
Board    of    Com'rs     of    Shawnee 

County,  Kan.  v.  Hurley,  132. 
Board  of  Liquidation  of  City  of 

New  Orleans  v.  United  States, 

297. 

Boardman,  In  re,  215. 
Boatmen's  Bank   of  St.  Louis  v. 

Fritzlen,  324. 
Bock  v.  Perkins,  238. 
Boese  v.  King,  114. 
Boise  County  v.  Gorman,  572. 
Bond  v.  Dustin,  402,  410. 
Bonin  v.  Gulf  Co.,  519. 
Bonner,  In  re,  68,  216. 
Bonner  v.  Meikle,  340. 
Borgmeyer  v.  Idler,  512. 
Bors  v.  Preston,  82,  262,  383. 
Boske  v.  Comingore,  208,  211,  510. 
Boston  Safe  Deposit  &  Trust  Co. 

v.   Bankers'   &  Merchants'  Tel. 

Co.,  461. 

Boston  &  M.  R.  Co.  v.  Gokey,  393. 
Boston  &  Oaxaca  Min.  Co.,  In  re, 

115. 

Bostwick  v.  Brinkerhoff,  568. 
Bosworth  v.  Hook,  455. 
Botts  v.  Hammond,-  86. 
Bowden  v.  Burnham,  284. 
Bowdoin  College  v.  Merritt,  290. 
Bowe  v.  United  States,  186. 
Bowker  v.  United  States,  546. 
Boyd,  In  re,  166. 


Boyd  v.  Great  Western  Coal  & 
Coke  Co.,  314. 

Boynton,  In  re,  95. 

Bracken  v.  Milner,  180. 

Bradshaw  v.  Miners'  Bank,  298. 

Brady  v.  Daly,  78. 

Bram  v.  United  States,  46,  58. 

Brandies  v.  Cochrane,  560. 

Brawner  v.  Irwin,  81. 

Braxton  County  Court  v.  West 
Virginia,  532. 

Breedlove  v.  Nicolet,  261. 

Briggs  v.  Neal,  454. 

Brinkmeier  v.  Missouri  Pac.  R. 
Co.,  534. 

Britannia  Min.  Co.,  In  re,  460. 

Broadis  v.   Broadis,  300. 

Brodbine,  In  re,  124. 

Bromley,  In  re,  169. 

Bronson  v.  Schulten,  413. 

Brooklyn  City  &  N.  R.  Co.  v.  Na- 
tional Bank  of  Republic,  18. 

Brown  v.  Allebach,  292. 

Brown  v.  Grove,  453. 

Brown  v.  McConnell,  551,  557,  559. 

Brown  v.  Morgan,  293. 

Brown  v.  New  Jersey,  13. 

Brown  v.  Smart,  90. 

Brown  v.  United  States,  59. 

Brown  v.  Webster,  231. 

Brown,  B.  &  Co.  v.  Lake  Superior 
Iron  Co.,  441. 

Brown  &  Co.,  In  re,  162. 

Bruce  v.  Manchester  &  K.  R.  Co., 
228. 

Bruett  v.  Austin  Drainage  Exca- 
vation Co.,  251. 

Brun  v.  Mann,  291. 

Brundage,  In  re,  142. 

Bruner  v.  Kansas  Moline  Plow 
Co.,  268. 

Bryan  v.  Bernheimer,  122,  123, 
126,  154. 

Bryant  v.  Swofford  Bros.  Dry 
Goods  Co.,  17,  146. 

Bryant  Bros.  Co.  v.  Robinson,  349. 

Bryce  v.  Southern  R.  Co.,  324. 

Bucher  v.  Cheshire  R.  Co.,  14. 


CASES  CITED 


709 


[The  figures  refer  to  pages] 


Buck  v.  Felder,  318. 

Buck  Stove  &  Range  Co.  v.  Vick- 

ers,  547. 

Buckingham  v.  Dake,  281. 
Bucklin  v.  United  States,  66,  480. 
Buel  v.  Van  Ness,  530. 
Buffington  v.  Harvey,  156. 
Bullis  v.  O'Beirne,  180. 
Burbank  Co.,  In  re,  117. 
Burchett  v.  United  States,  51. 
Burdick  v.  Dillon,  94. 
Burgess  v.  Seligman,  16. 
Burka,  In  re,  135. 
Burke  v.  'Davis,  457. 
Burley  v.  United  States,  200. 
Burlingham  v.   Grouse,   160. 
Burruss,  In  re.  207. 
Burton  v.   United  States,  37,  65, 

411. 

Bush  v.  Kentucky,  345. 
Bushnell    v.    Crooke    Mining    & 

Smelting  Co.,  579. 
Butler  v.  Gage,  571. 
Butler  v.  Goreley,  91; 
Butterfield  v.  Miller,  446. 
Butts,  In  re,  180. 
Byers  v.  McAuley,  303. 


Caha  v.  United  States,  41,  46. 

Caldwell,  In  re,  163. 

California  v.   Southern  Pac.  Co., 

386. 
California    ex    rel.    Hastings    v. 

Jackson,  536. 
California  Nat.  Bank  v.  Kennedy, 

241. 

Callahan   v.    United    States,   27. 
Cainden  v.  Mayhew,  460. 
Camden  &  S.  R,  Co.  v.  Stetson,  10, 

404. 

Cameron  v.  Hodges,  359. 
Cameron   v.    United    States,   141, 

192. 

Camfield  v.  United  States,  193. 
Camp,  In  re,  101. 
Camp  v.  Field,  380. 


Campbell  v.  Boyreau,  401. 
Campbell  v.  Johnson,  266. 
Campbell  v.  Milliken,  341. 
Campbell  v.  United  States,  401, 

402. 
Campbell   Printing-Press   &    Mfg. 

Co.  v.  Marden,  464. 
Canal   Bank  of   New   Orleans  v. 

Partee,  17. 
Canal  &  C.  Streets  R.  Co.  v.  Hart, 

416. 
Caimer   v.    Webster   Tapper   Co., 

108. 

Capital  Traction  Co.  v.  Hof,  548. 
Carey  v.  Houston  &  T.  C.  R.  Co., 

503,  509. 

Carley,  In  re,  170. 
Carlisle   v.    Sunset    Telephone   & 

Telegraph  Co.,  353. 
Carll,  Ex  parte,  212. 
Carmichael,  In  re,  132,  174. 
Carolina  Cooperage  Co.,  In  re,  98. 
Carothers  v.  McKinley  Mining  & 

Smelting  Co.,  336. 
Carpenter  v.  Cudd,  129. 
Carson  v.  Dunham,  536. 
Carter  v.  Texas,  51,  80. 
Carver  v.  United  States,  57. 
Case  v.  Olney,  303. 
Gates  v.  Allen,  225,  316,  ,'JL'l. 
C.  A.  Treat  Mfg.  Co.  v.  Standard 

Steel  &  Iron  Co.,  510. 
Cayce  v.  Southern  R.  Co.,  334. 
Cedar  Rapids  Gaslight  Co.  v.  Ce- 
dar Rapids,  534. 
Cella  v.  Brown,  517. 
Celluloid    Mfg.    Co.    v.    Cellonite 

Mfg.  Co.,  457. 
Central  R.  Co.  of  New  Jersey  v. 

Mills,  237. 

Central  Trust  Co.  v.  Benedict,  293. 
Central  Trust  Co.  v.  Bridges,  294. 
Central  Trust  Co.  v.  Citizens'  St 

R.  Co.  of  Indianapolis.  15. 
Central  Trust  Co.  v.  East  Tennes- 
see, V.  &  G.  R.  Co.,  295. 
Central   Trust   Co.   v.   McGeorge, 

266. 


710 


CASES  CITED 


[The  figures  refer  to  pages] 


Central  Trust  Co.  v.  Marietta  & 

N.  G.  R.  Co.,  457. 
Central  Trust  Co.  v.  Richmond  & 

D.  R.  Co.,  457. 
Central  Trust  Co.  v.  Wabash,  St 

L.  &  P.  R.  Co.,  461. 
Central  Trust   Co.  of  New  York 

v.  United  States  Flour  Mill.  Co., 

295. 

Chaffee  v.  Hayward,  554,  555. 
Chamberlain,  In  re,  176. 
Chambers  v.   Baltimore  &  O.   R. 

Co.,  540. 

Chantango  v.  Abaroa,  71. 
Chaplin,  In  Te,  133. 
Chapman,  In   re,   54,  112. 
Chapman   v.    Atlantic  Trust  Co., 

475. 

Chapman  v.   Barney,   251. 
Chapman  &  D.  Land  Co.  v.  Bige- 

low,  534. 

Chappell,  In  re,  159. 
Chappell    v.    United    States,    200, 

202,  501,  506,  511. 
Charman  v.  Lake   Erie  &  W.  R. 

Co.,  323. 

Charnley  v.  Sibley,  10. 
Chase,  In  re,  167. 
Chase  v.  Erhardt,  365. 
Chase  v.  United  States,  189,  190. 
Chateaugay  Ore  &  Iron  Co.,  In 

re,   409. 

Chatfield  v.  O'Dwyer,  487. 
Cheatham  Electric  Switching  De- 
vise Co.  v.  Transit  Development 

Co.,  403. 
Cherokee  Nation  v.  Railroad  Co., 

201. 
Chesapeake  &  O.  R.  Co.  v.  Dixon, 

332,  333. 
Chesapeake  &  O.  R.   Co.  v.  Mc- 

Cabe,  304,  373,  568. 
Chesapeake  &  O.  R.  Co.  v.  White, 

374. 
Chesapeake  &  Potomac  Tel.  Co.  v. 

Manning,  567. 
Chiatovich  v.  Hanchett,  329,  367. 


Chicago  v.  Mills,  501. 

Chicago,  B.  &  Q.  R.  Co.  v.  United 
States,  71. 

Chicago,  B.  &  Q.  R.  Co.  v.  Willard, 
324,  333. 

Chicago  Life  Ins.  Co.  v.  Needles, 
541,  542. 

Chicago,  R.  i.  &  P.  R.  Co.  v.  Dow- 
ell,  324,  332. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Mar- 
tin, 318,  323. 

Chicago,  R.  I.  &  P.  R.  Co.  v. 
Schwyhart,  333. 

Chicago,  R.  I.  &  P.  R.  Co.  v. 
Swanger,  305. 

Chicago  &  N.  W.  R.  Co.  v.  Ken- 
dall, 11. 

Chicot  County  v.  Sherwood,  442. 

Chisholm  v.  Georgia,  386. 

C.  H.  Nichols  Lumber  Co.  v.  Fran- 
son,  263,  498. 

Choteau  v.  Marguerite,  533. 

Cincinnati  Equipment  Co.  v.  Deg- 
nan,  159. 

Cincinnati,  H.  &  D.  R.  Co.  v.  Mc- 
Keen,  517. 

Cincinnati,  H.  &  D.  R.  Co.  v.  Thie- 
baud,  247,  490,  508,  518. 

Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
Bohon,  333. 

Cincinnati  St  R.  Co.  v.  Snell, 
569. 

Citizens'  Bank  v.  Cannon,  234. 

Citizens'  Bank  v.  Parker,  535. 

Citizens'  Sav.  Bank  v.  Newbury- 
port,  281. 

Citizens'  Savings  &  Trust  Co.  v. 
Illinois  Cent.  R.  Co.,  275. 

City  of  Da-wson  v.  Columbia  Ave. 
Saving  Fund,  Safe  Deposit,  Ti- 
tle &  Trust  Co.,  239. 

City  of  Detroit  v.  Dean,  289. 

City  of  Detroit  v.  Detroit  City  R. 
Co.,  341,  343,  363. 

City  of  Eau  Claire  v.  Payson,  281. 

City  of  Lincoln  v.  Power,  404,  405. 


CASES   CITED 


711 


[The  figures  refer  to  pages] 


City  of  Manning  v.  Insurance  Co., 

413. 

City  of  Minneapolis  v.  Reum,  261. 
City  of  New  Castle  v.  Postal-Tele- 
graph Cable  Co.,  358. 
City  of  New  Orleans  v.  Benjamin, 

279. 
City  of  New  Orleans  v.     Games' 

Adm'r,  283. 
City  of  New  Orleans  v.  Quinlan, 

280. 
City  of  New  Orleans  v.  Warner, 

457. 

City  of  Quincy  v.  Steel,  290. 
City  of  Superior  v..  Ripley,  282. 
City  of  Tacoma  v.  Wright,  342. 
Civil  Rights  Cases,  81. 
Claasen,  In  re,  40. 
Claff,  In  re,  168. 
Claiborne  County  v.  Brooks,  14. 
Clark  v.  Bever,  306. 
Clark  v.  Chicago,  R.  I.  &  P.   R. 

Co.,  324,  380. 
Clark  v.  Nash,  201. 
Clark  v.   Southern  Pac.  Co.,  244. 
Clark  v.  Wells,  379. 
Clarke,  Ex  parte,  212. 
Clarke  v.  Atlantic  City,  17. 
Clarke  v.  Larremore,  151. 
Clearwater   v.  Meredith,  256. 
Cleveland,  C.,  C.  &  I.  R.  Co.  v. 

McClung,  348. 
Cliffe,  In  re,  103,  112. 
Clisdell,  In  re,  169. 
Clune  v.  United  States,  65. 
Clyatt  v.  United  States,  65. 
Cobb  v.  Overman,  136. 
Cochran   v.   Montgomery   County, 

341,  343. 

Cochran  v.  United  States,  43. 
Cody  Motors  Co.  v.  Watten  Motor 

Car  Co.,  268. 

Coffey  v.  United  States,  54. 
Coffin  v.  United  States,  63. 
Cohen  v.  Delavina,  428. 
Cohens  v.  Virginia,  383,  529. 
Coker  v.  Monaghan  Mills,  336. 


Colburn  v.  Hill,  331. 

Cole,  In  re,  36,  179. 

Coleman  v.  United  States,  185. 

Collin  County  Nat.  Bank  of  Mc- 
Kinney,  Tex.  v.  Hughes,  297. 

Collins  v.  Ashland,  245,  247,  286, 
290. 

Collins  v.  Campbell,  341. 

Colombia  v.  Cauca  Co.,  523. 

Colorado  Cent.  Consol.  Min.  Co.  v. 
Turck,  490. 

Columbian  Equipment  Co.  v.  Mer- 
cantile Trust  &  Deposit  Co.,  453. 

Columbia  Water  Power  Co.  v.  Co- 
lumbia Electric  St.  R.,  Light  & 
Power  Co.,  540. 

Columbus  Iron  &  Steel  Co.  v.  Kan- 
awha  &  M.  R.  Co.,  5. 

Columbus  S.  &  H.  R.  Co.,  Appeal 
of,  456. 

Columbus  Watch  Co.  v.  Robbins, 
518. 

CoMn  v.  Jacksonville,  233,  498. 

Comitis  v.  Parkerson,  262. 

Commercial  Mut.  Ace.  Co.  v.  Da- 
vis, 503. 

Commercial  &  R.  Bank  of  Vicks- 
burg  v.  Slocomb,  249. 

Commonwealth  v.  Casey,  349. 

Commonwealth  v.  Kitchen,  27. 

Commonwealth  v.  Louisville 
Bridge  Co.,  365. 

Commonwealth  of  Virginia  v. 
Bingham,  348. 

Commonwealth  of  Virginia  v.  De 
Hart,  348. 

Commonwealth  Trust  Co.  v.  Frick, 
395. 

Compton  v.  Jesup,  291. 

Conley,  In  re,  177. 

Conley  v.  Mjathieson  Alkali  Works, 
268,  394. 

Connecticut  Mut.  Life  Ins.  Co.  v. 
Trust  Co.,  12. 

Connell  v.  Smiley,  338. 

Connolly  v.  Union  Sewer  Pipe  Co., 
390,  508,  513. 


712 


CASES  CITED 


[The  figures  refer  to  pages] 


Connors  v.  United  States,  67. 

Conqueror,  The,  519. 

Conroy,  In  re,  168. 

Consolidated  Fastener  Co.  v.  Co- 
lumbian Fastener  Co.,  456. 

Continental  Casualty  Co.  v.  Spra- 
din,  231. 

Continental  Nat.  Bank  of  Mem- 
phis v.  Buford,  240,  250,  490. 

Continental  Wall-Paper  Co.  v. 
Lewis  Voigiit  &  Sons  Co.,  360. 

Cook  v.  Hart,  205. 

Cook  v.   Robinson,   159. 

Cook  v.  United  States,  37. 

Cook  Co.  v.  Beecher,  78,  240. 

Cooke  v.  Avery,  239. 

Cooper  v.  Reynolds,  277. 

Corbett  v.  Craven,  536. 

Corbin  v.  Black  Hawk  County, 
279. 

Corn,  In  re,  171,  177. 

Cornwall,  In  re,  138. 

Cosmopolitan  Min.  Co.  v.  Walsh, 
509,  510. 

Coudert  v.  United  States,  487. 

Coulter,  In  re,  146. 

Cound  v.  Atchison,  T.  &  S.  F.  R. 
Co.,  267. 

Courier  Journal  Job  Printing  Co. 
v.  Shaefer-Meyer  Brewing  Co., 
485. 

Cowell  v.  City  Water-Supply  Co., 
272. 

Cox  v/Wall,  154. 

Coyle  &  Co.  v.  Stern,  313. 

Craemer  v.  State,  481. 

Craemer  v.  Washington,  214. 

Crafts-Riordon  Shoe  Co.,  In  re, 
112,  152. 

Crain  v.  United  States,  48,  53. 

Cramp  &  Sons  Ship  &  Engine 
Bldg.  Co.  v.  International  Cur- 
tiss  Marine  Turbine  Co.,  470. 

Crawford,  Ex  parte,  91. 

Crawford  v.  Burke,  138,  181. 

Crawford  v.  Illinois  Cent.  R.  Co., 
324. 

Crawford  v.  Johnson,  80. 


Creagh  v.  Equitable  Life  Assur. 
Soc.  of  United  States,  330,  372. 

Cresson  &  Clearfield  Coal  &  Coke 
Co.  v.  Stauffer,  117. 

Crist,  In  re,  170. 

Cronin,  In  re,  106. 

Cross  v.  Burke,  202. 

Cross  v.  North  Carolina,  27. 

Crossley  v.  California,  27. 

Crowley  v.  Christensen,  215. 

Cuddy,  Ex  parte,  215. 

Cumberland  Lumber  Co.  v.  Tunis 
Lumber  Co.,  460. 

Cumberland  Telephone  &  Tele- 
graph Co.  v.  Memphis,  433. 

Cumming  v.  Board,  80. 

Cummings  v.  Chicago,  240,  511. 

Cunningham  v.  Insurance  Bank, 
486. 

Currier,  In  re,  140. 


Daigneau  v.  Grand  Trunk  R.  Co., 

411. 
Dalles  &  R.  Ferry  Co.  v.  Hendryx, 

314. 
Dalton  v.   Milwaukee  Mechanics' 

Ins.  Co.,  353. 
Dancel  v.  Goodyear  Shoe  Mach. 

Co.,  366. 

Darling  v.  Berry,  88,  89. 
Darnell  v.   Illinois  Cent   R.  Co., 

317. 

Darnell  v.  Krouse,  411. 
Dartmouth  Sav.   Bank   v.   Bates, 

415. 

Dauchy,  In  re,  171. 
Daugherty  v.  Sharp,  312. 
Davenport  v.  Cloverport,  80. 
Davenport  v.  Dodge  County,  222. 
Davenport  v.  Fletcher,  558. 
Davidson  v.  Lanier,  551,  557. 
Davidson    Bros.    Marble    Co.    v. 

United  States,  268. 
Davis    v.    Bessemer    City    Cotton 

Mills,  10. 
Davis  v.  Bohle,  123. 


CASES  CITED 


713 


[The  figures  refer  to  pages] 


Davis  v.  Cleveland,  C.,  C.  &  St. 

L.  R.  Co.,  503. 
Davis  v.  Garrett,  438. 
Davis  v.  Schwartz,  454. 
Davis  v.  South  Carolina,  348. 
Davis  v.  Turner,  151. 
Davis  v.  United  States,  58. 
Dawson  v.  Columbia  Are.  Saving 

Fund,    Safe    Deposit,    Title    & 

Trust  Co.,  239. 
De  Bara,  In  re,  68. 
Debs,  In  re,  204. 
Decker,  Jr.,  &  Co.  v.  Southern  R. 

Co.,  269,  327. 
Defiance   Water   Co.  v.   Defiance, 

236. 

De   Hieropolis  v.  Lawrence,  275. 
Delafield.  In  re,  222. 
De  La  Montanya  v.  De  La  Mon- 

tanya,  356. 
Delaware,    L.    &    W.    R.    Co.    v. 

Frank,  260. 
Deming  v.  Carlisle  Packing  Co., 

534. 

Dempster,  In  re,  105,  126. 
Dennick  v.  Central  R.  Co.  of  New 

Jersey,  9. 

Dennis  v.  Alachua  Co.,  354. 
Dennison  v.  Brown,  342. 
Denny  v.  Pironi,  354. 
Denver  First  Nat  Bank  v.  Klug, 

475. 

Deputrou  v.  Young,  290. 
Deshler  v.  Dodge,  281. 
Des  Moines  &   Mississippi  Levee 

Dist.  No.  1  v.  Chicago,  B.  &  Q. 

R.  Co.,  381. 
Des  Moines  &  M.  R.  Co.,  Ex  parte, 

275,  395. 
Despeaux  v.  Pennsylvania  R.  Co., 

403. 

Desrochers,  In  re,  126. 
Detroit  v.  Dean,  289. 
Detroit  City  R,  Co.  v.  Guthard, 

541. 
Detroit  United    Ry.    v.    Nichols, 

412. 


Devine  v.  Los  Angeles,  236,  240. 
Devoe  Mfg.  Co.,  In  re,  23. 
Dial  v.  Reynolds,  431. 
Diamonds  v.  United  States,  73. 
Dibble   v.   Bellingham   Bay   Land 

Co.,  14. 

Dick  v.  Foraker,  275. 
Dietzsch  v.  Huidekoper,  430. 
Dillard  v.  Collins,  161. 
Dillon,  In  re,  135. 
Dimmick  v.  Tornpkins,  48L 
Dinet  v.  Delavan,  360. 
Dismal    Swamp   Contracting   Co., 

In  re,  151. 
District  of  Columbia   v.   Barnes, 

185. 

Doctor  v.  Harrington,  249. 
Dodge  v.  Knowles,  560. 
Dodge  v.  North  Hudson,  399. 
Dodge  v.  Tulleys,  259. 
Donnelly  v.  United  States,  240. 
Donovan  v.   Wells  Fargo  &  Co., 

373. 

Doscher,  In  re,  158. 
Douglass  v.  Pike  County,  15. 
Dow's  Estate,  In  re,  176. 
Doyle  v.  Clark,  246. 
Doyle  v.  Continental  Ins.  Co.,  305. 
Drainage   Dist   No.   19,   Caldwell 

County,  v.  Chicago,  M.  &  St.  P. 

R.  Co.,  222. 
Dressel   v.    North    State    Lumber 

Co.,  134. 
Dresser    v.    Edison    Illuminating 

Co.,  245. 

Duguid,  In  re,  95. 
Dunbar  v.  Dunbar,  136,  137,  138. 
Dunbar  v.  United  States,  63,  66. 
Duncan,  In  re,  105,  207. 
Duncan  v.  Landis,  485. 
Dunlop  v.  United  States,  44. 
Dunn,  In  re,  314,  318. 
Dunseath  &  Son  Co.,  In  re,  126. 
Dupree,  In  re,  118. 
Durland  v.  United  States,  51,  55, 

67. 
Dushaue  v.  Benedict,  390,  398. 


714 


CASES  CITED 


[The  figures  refer  to  pages] 


Dvorak,  In  re,  168. 
Dwight  v.  Humphreys,  425. 
Dwight  v.  Merritt,  393,  394. 
Dwyer,  In  re,  98. 
Dygert  v.  Trust  Co.,  18. 

E 

Earling  v.  Ernigh,  534. 

Earnhart  v.  Switzler,  236. 

East  Tennessee,  V.  &  G.  R.  Co.  v. 

Grayson,  335. 
East  Tennessee   V.  &  G.  R,  Co.  v. 

Southern  Tel.  Co.,  378. 
Eaton,  In  re,  176. 
Eaton  v.  Cleveland,  St.  L.  &  K.  C. 

R.  Co.,  416. 
Edgington   v.    United   States,   58, 

64. 

Edrington  v.  Jefferson,  381. 
Edward  Ellsworth  Co.,  In  re,  115. 
Edward   P.  Allis   Co.   v.   Withla- 

coochee  Lumber  Co.,  443. 
Edwards  v.  Bates  Co.,  231. 
Egan  v.  Chicago  G.  W.  R.  Co., 

297. 

Egan  v.  Hart,  534. 
Eggert,  In  re,  160,  483. 
Eilenbecker  v.  District  Court,  36. 
Einstein   v.   Georgia    Southern  & 

F.  R.  Co.,  259. 
Eldred  v.    American  Palace  Car 

Co.  of  New  Jersey,  438. 
Eldridge,  In  re,  139. 
Electric  Supply  Co.,  In  re,  115. 
Elk  Garden  Co.  v.  T.  W.  Thayer 

Co.,  275. 
Ellenwood  v.  Marietta  Chair  Co., 

272. 

Elliott  v.  Toeppner,  129,  483,  485. 
Ellis  v.  Davis,  223. 
Ellison  v.  Louisville  &  N.  R.  Co., 

341. 

Ellsworth  Co.,  In  re,  115. 
Empire   Circuit   Co.    v.    Sullivan, 

419. 
Empire  Metallic  Bedstead  Co.,  In 

re,  115. 


Empire  State-Idaho  Mining  & 
Developing  Co.  v.  Hanley,  489. 

Emsheimer  v.  New  Orleans,  284. 

Ennis,  In  re,  147. 

Enos  v.  Kentucky  Distilleries  & 
Warehouse  Co.,  324. 

Equitable  Life  Assur.  Soc.  of 
United  States  v.  Brown,  442. 

Erickson  v.  Hodges,  215. 

Erie  Lumber  Co.,  In  re,  150. 

Erie  R.  Co.  v.  Purdy,  541. 

Brkel  v.  United  States,  402. 

Erwin  v.  United  States,  33. 

Estes  v.  Trabue,  555. 

Etheridge  Furniture  Co.,  In  re, 
105,  126. 

Ethier,  In  re,  162. 

Eustis  v.  Bolles,  541. 

Evansberg  v.  Insurance  Stove, 
Range  &  Foundry  Co.,  334. 

Everett  v.  Independent  School 
Dist.  of  Rock  Rapids,  299. 

Everett  v.  Judson,  147. 

Evers  v.  Watson,  324. 

Excelsior  Wooden  Pipe  Co.  v.  Pa- 
cific Bridge  Co.,  78,  237,  241, 
242,  288,  501. 

Exploration  Mercantile  Co.  v.  Pa- 
cific Hardware  &  Steel  Co.,  115. 


Factors'  &  Traders'  Ins.  Co.  v. 
Murphy,  163,  536. 

Failey  v.  Talbee,  441. 

Fair,  The,  v.  Kohler  Die  &  Spe- 
cialty Co.,  78,  242,  491. 

Falk  v.  Publishing  Co.,  78. 

Fall  v.  Eastin,  461. 

Fallbrook  Irr.  Dist  v.  Bradley, 
201,  535. 

Fanshawe  v.  Tracy,  428. 

Farmers'  Loan  &  Trust  Co.  v. 
Northern  Pac.  R.  Co.,  296. 

Farmers'  &  Merchants'  Ins.  Co.  v. 
Dobney,  540. 

Farmington  y.  Pillsbury,  287. 


CASES  CITED 


715 


[The  figures  refer  to  pages] 


Farr  v.  Hobe-Peters  Land  Co., 
281,  284,  419. 

Farrar  v.  Bernheim,  456. 

Farrell,  In  re,  91. 

Farrell  v.  O'Brien,  289,  312. 

Faulk  &  Co.  v.  Steiner,  Lobman 
&  Frank,  125. 

Faust  v.  United  States,  44. 

Faxon,  The  Annie,  492. 

Fayerweather  v.  Ritch,  276. 

Fayette  Title  &  Trust  Co.  v.  Mary- 
laud  P.  &  W.  V.  Telephone  & 
Telegraph  Co.,  364. 

Fayetteville  Wagon- Wood  &  Lum- 
ber Co.,  In  re,  162. 

Federal  Lumber  Co.,  In  re,  108. 

Federal  Mining  &  Smelting  Co.  v. 
Bunker  Hill  &  Sullivan  Mining 
&  Concentrating  Co.,  258,  299. 

Feibelman  v.  Packard,  555. 

Feldstein,  In  re,  142,  177. 

Felsenheld  v.  United  States,  517. 

Fenn  v.  Holme,  223,  389. 

Ferguson,  In  re,  112. 

Fidelity  Insurance  Trust  &  Safe 
Deposit  Co.  v.  Huntington,  330. 

Fidelity  Mut.  Life  Ass'n  v.  Met- 
tler,  515. 

Fidelity  Trust  Co.  v.  Gaskell,  475. 

Fidelity  &  Deposit  Co.  v.  L.  Buck! 
&  Son  Lumber  Co.,  61,  400. 

Fiegenbaum,  In  re,  168. 

Field  v.  Barber  Asphalt  Pav.  Co., 
506. 

Fife,  In  re,  138. 

Fife  v.  Whittell,  362. 

Files  v.  Davis,  295. 

Finance  Committee  of  Pennsyl- 
vania v.  Warren,  454. 

First  Nat.  Bank  v.  Abbott,  160. 

First  Nat.  Bank  v.  Chehalis  Coun- 
ty, 13. 

First  Nat  Bank  v.  Chicago  Title 
&  Trust  Co.,  483. 

First  Nat.  Bank  v.  Lasater,  161. 

First  Nat.  Bank  v.  Masterson,  172. 

First  Nat.  Bank  v.  Prager.  352. 

First  Nat.  Bank  v.  Trust  Co..  260. 


Fishback  v.  Western  Union  Tel. 

Co.,  5,  234. 

Fishblatt  v.  Atlantic  City.  306. 
Fishburn  v.  Chicago,  M.  &  St  P. 

R.  Co.,  411. 
Fisher  v.  Baker,  481. 
Fisher  v.  Cushman,  484. 
Fisher  v.  Perkins,  531. 
Fisk,  Ex  parte,  12. 
Fisk  v.  Henarie,  339,  371. 
Fitzgerald  v.  Green,  27. 
Fitzpatrck  v.   United  States,   59, 

60. 

Fixen,  In  re,  125,  133. 
Floren  v.  United  States,  67. 
Florida  Cent.  &  P.  R.  Co.  v.  Bell, 

236,  255,  489. 

Flower  v.  MacGinnis,  451. 
Flynn  v.  Fidelity  &  Casualty  Co., 

356. 

Foerst,  In  re,  143. 
Folsom  v.  Ninety-Six  Tp.,  15. 
Folsom  v.  United  States,  517. 
Force  v.  Standard  Silk  Co.,  19. 
Foreman  v.  Burleigh,  487. 
Forrest  v.  Safety  Banking  &  Trust 

Co.,  18. 
Forsyth  v.  Hammond,  14,  518,  519, 

520. 

Forsyth  v.  Vehmeyer,  179. 
Ft.  Leavenworth  R.  Co.  v.  Lowe. 

26. 
Ft.  Wayne  Electric  Corp.,  In  re, 

110. 

Foster  v.  Coos  Bay  Gas  &  Elec- 
tric Co.,  324,  330. 
Fowle  v.  Park,  172. 
Fox  v.  Southern  R.  Co.,  367,  370. 
Francis  v.  McNeal,  159. 
Frank   v.   Leopold   &  Feron   Co.. 

238. 

Fraser  v.  Jennison,  332. 
Freche,  In  re,  179. 
Frederic  L.  Grant  Shoe  Co.  v.  W. 

M.  Laird  Co.,  137,  498. 
Freeman  v.   Surety  Co.,  267,  269. 
Fi  eese  v.  Kemplay,  405. 
Frelinghuysen  v.  Baldwin,  226. 


716 


CASES  CITED 


[The  figures  refer  to  pages] 


French  v.  Hopkins,  533. 
Freund,  In  re,  176. 
Frick  v.  Lewis,  261. 
Friedenstein  v.  United  States,  66. 
Friedly  v.  Giddings,  414. 
Friedman  v.  Zweifler,  172. 
Frisbie  v.  United  States,  45. 
Fritzlen  v.  Boatmen's  Bank,  335, 
369. 


Gableman  v.  Peoria,  D.  &  E.  R. 
Co.,  242,  315. 

Gaddie  v.  Mann,  290. 

Gage  v.  Carraher,  322. 

Gage  v.  Riverside  Trust  Co.,  262. 

Galveston,  H.  &  S.  A.  R.  Co.  v. 
Gonzales,  267. 

Gammon,  In  re,  176. 

Gann  v.  Northeastern  R.  Co.,  340. 

Garcewich,  In  re,  147. 

Gardes  v.  United  States,  48. 

Garfield  v.  United   States,  196. 

Garrozi  v.  Dastas,   317. 

Garry  v.  Jefferson  Bank,  171. 

Gavieres  v.  United  States,  55. 

Gay,  In  re,  101,  161. 

Gay  v.  Parpart,  558. 

Gay  Mfg.  Co.  v.  Camp,  457. 

Gaylord,  In  re,  176. 

Geer  v.  Mathieson  Alkali  Works, 
334,  335. 

Gelpcke  v.   Dubuque,   15. 

General  Electric  Co.  v.  Hurd,  415. 

General  Oil  Co.  v.  Grain,  14. 

Generes  v.  Campbell,  408. 

George  T.  Smith  Middlings  Puri- 
fier Co.  v.  McGroarty,  306. 

Georgia  v.  Stantou,  384. 

Gerber,  In  re,  101. 

German  Ins.  Co.  v.  Hearne,  517. 

German  Nat.  Bank  v.  Speckert, 
562. 

German  Savings  &  Loan  Soc.  v. 
Dormitzer,  317,  318. 

Gerson,  In  re,  136. 

Ghost  v.  United  States,  409. 

Gibson  v.  Mississippi,  345. 


Giddings  v.  Freedley,  414. 
Giles  v.  Harris,  512. 
Gillum  v.  Stewart,  393. 
Gilman  v.  Lockwood,  CO. 
Girard  Life  Insurance,  Annuity  & 

Trust  Co.  v.  Cooper,  455. 
Gladding  Co.,  In  re,  165. 
Glasgow  v.  Moyer,  203. 
Glass,  In  re,  170. 
Glass  v.  Concordia,  279. 
Gleason  v.  Florida,  572. 
Gleason  v.  Smith,  121. 
Glenn  v.  Sumner,  410. 
Glenny  v.  Langdon,  154. 
Glide,  The,  75. 
Glover  v.  Shepperd,  376. 
Godchaux  v.  Morris,  460. 
Goddard  v.  Ordway,  561. 
Goins  v.  Southern  Pac.  Co.,  372. 
Golden  Rod,  The,  16. 
Goldey  v.  Morning  News,  379. 
Goldsby  v.  United  States,  57,  63. 
Goodale,  In  re,  169. 
Goodman,  In  re,  96. 
Goodman  v.  Curtis,  484. 
Goodman  v.  Niblack,  274. 
Goodrich  v.  Ferris,  506. 
Good  Shot  v.  United  States,  519. 
Goodwin  v.  Fox,  12. 
Gordon  v.  Jennings,  97. 
Gordon  v.  Ware  Nat.  Bank,  IS. 
Gouyet,  Ex  parte,  212. 
Grace    v.    American    Cent     Ins. 

Co.,  5. 

Graham  v.  Swayne,  463. 
Graham  v.  West  Virginia,  54. 
Grame  v.  Mutual  Assur.  Co.,  534. 
Grand  Rapids  &  I.  R,  Co.  v.  Os- 

birn,  535. 
Grand  Trunk  R.  Co.  v.  Twitchell, 

340. 
Grant  Shoe  Co.  v.   W.  M.  Laird 

Co.,  137,  498. 
Graver  v.  Faurot,  517. 
Graves  v.  Corbin,  331. 
Great    Falls    Nat.    Bank    v.    Me- 

Clure,  415. 


CASES  CITED 


717 


[The  figures  refer  to  pages] 


<Jreat  Southern  Fire  Proof  Hotel 

Co.  v.  Jones,  251. 
Great  Western  Tel.  Co.  v.  Burn- 
ham,  532,  568. 
Greeley  v.  Lowe,  274. 
Green  v.  Chicago,  B.  &  Q.  R,  Co., 

268. 

Green  v.  Turner,  224. 
Green  Co.  v.  Thomas,  233. 
Oreene  v.  Henkel,  32,  35,  206. 
Greenewald,  In  re,  98. 
Gregory  v.  McVeigh,  531,  569. 
Gregory  v.  Pike,  436. 
Grimes,  In  re,  101. 
Griiuley,  In  re,  204. 
Gring  v.  Ives,  534. 
Grissler,  In  re,  146. 
Griswold  v.  Hazard,  217. 
Groton    Bridge   Co.   v.    American 

Bridge  Co.,  365. 
Grubbs-Wiley  Grocery  Co.,  In  re, 

98. 
Guarantee  Co.  of  North  America 

v.    Mechanics'     Sav.    Bank    & 

Trust  Co.,  546. 
Guarantee  Co.   of  North   Dakota 

v.  Hanway,  366. 
Guarantee  Title   &  Trust  Co.   v. 

Title  Guaranty   &   Surety   Co., 

164. 
Guardian  Assur.  Co.  of  London  v. 

Quintana,  63,  408. 
Guaranty    Title   &   Trust    Co.   v. 

Pearlman,  125. 

Gulf  &  S.  I.  R.  Co.  v.  Hewes,  541. 
Gumbel  v.  Pitkin,  291. 
Gundy  v.  Armstrong,  292. 
Gutwillig,  In  re,  108. 

H 

Habana,   The  Paquete,   472,  473, 

503,  530. 

Hackett  v.  Kuhne,  328. 
Haensell,  In  re,  161. 
Hagood  v.  Southern,  387. 
Hagstoz  v.  Mutual  L.  I.  Co.,  266. 
Hair  v.  Burnell,  297. 


Hall  v.  Chattanooga  Agr.  Works, 
370. 

Hall  v.  Tevis,  359. 

Hall  v.  United  States,  61. 

Hallowell  v.  United  States,  517. 

Hamilton  Automobile  Co.,  In  re, 
483. 

Hamilton  Gaslight  &  Coke  Co.  v. 
Hamilton,  239. 

Hammond  Packing  Co.  v.  Arkan- 
sas, 437. 

Hanchett  v.  Blair,  445. 

Handley  v.  Stutz,  234. 

Hanks  Dental  Ass'n  v.  Interna- 
tional Tooth  Crown  Co.,  10,  403, 
450. 

Hanna  v.  Maas,  408. 

Hannibal  Bridge  Co.  v.  United 
States,  505. 

Hanover  Nat.  Bank  v.  Moyses,  88, 
89,  90,  102,  130. 

Hanover  Nat.  Bank  v.  Smith,  303. 

Hanrick  v.  Hanrick,  339. 

Hans  v.  Louisiana,  386. 

Hansen,  In  re,  181. 

Hardenbergh  v.  Ray,  247. 

Hardie  v.  Swafford  Bros.  Dry 
Goods  Co.,  172,  178. 

Harding,  Ex  parte,  321. 

Harding  v.  Illinois,  540. 

Harding  v.  Standard  Oil  Co.,  245, 
362. 

Hardwick  v.  Kean,  355. 

Hare,  In  re,  145. 

Hargadine-McKittrick  Dry  Goods 
Co.  v.  Hudson,  180. 

Harkrader  v.  Wadley,  431. 

Harlan  v.  McGowin,  203. 

Harmanson  v.  Bain,  154. 

Harper  v.  United  States,  43. 

Harr,  In  re,  168. 

Harris,  In  re,  142. 

Harris  v.  First  Nat  Bank,  156. 

Harrison  v.  Graham,  217. 

Harter  Tp.  v.  Kernochan,  368. 

Hartford  Fire  Ins.  Co.  v.  Chicago, 
M.  &  St  P.  R.  Co.,  17. 


718 


CASES  CITED 


[The  figures  refer  to  pages] 


Hartford  Fire  Ins.  Co.  v.  Erie  R. 

Co.,  284. 
Hartford  &  N.  Y.  Transp.  Co.  v. 

United  States,  186. 
Hartman,     In  re,  154. 
Hartman  v.  Greenhow,  530. 
Harty  v.  Municipality  of  Victoria, 

525. 
Haseltine  v.  Central   Nat.  Bank, 

569. 
Haskins  v.  St.  Louis  &  S.  E.  R. 

Co.,  557. 
Hatcher    v.    Hendrie   &    Bolthoff 

Mfg.  &  Supply  Co.,  291. 
Hauger  v.  United  States,  43. 
Havnor  v.  New  York,  571. 
Hayes  v.  Canada,  A.  &  P.  S.  S. 

Co.,  416. 
H.   C.   Cook  Co.  v.   Beecher,   78, 

240. 

Headly,  In  re,  132 
Hecox,  In  re,  105. 
Heelman  v.  Goldstone,  172. 
Hegler  v.  Faulkner,  352. 
Heller  v.  Ilwaco  Mill  &  Lumber 

Co.,  367. 

Helm  v.  Zarecor,  260. 
Helms  v.   Northern  Pac.  R.   Co., 

323,  333. 

Henderson  v.  Cabell,  318. 
Henderson's  Distilled  Spirits,  71. 
Hendrix  v.  United  States,  13. 
Hennessy    v.     Richardson    Drug 

Co.,  263. 

Henningsen  v.  United  States  Fi- 
delity &  Guaranty  Co.,  238,  521. 
Henry  v.  A.  B.  'Dick  Co.,  78,  242. 
Henry  v.  Sowles,  226. 
Henry  Gas  Co.  v.  United  States, 

196. 

Henschel,  In  re,  145. 
Hepner  v.  United  States,  71,  226. 
Herndon  v.  Chicago,  R.  I.  &  P.  R. 

Co.,  305. 
Herndon-Carter  Co.  v.  James  N. 

Norris  Son  &  Co.,  501. 
Herrman,  In  re,  168. 


Hess  v.  Kimble,  245. 

Hess  v.  Reynolds,  375. 

Hewitt  v.  Filbert,  560. 

Heyman,  In  re,  134. 

Hickman  v.  Missouri,  K.  &  T.  R. 
Co.,  374. 

Hickory  v.  United  States,  50,  58, 
60. 

Hicks,  In  re,  98. 

Hicks  v.  United  States,  60. 

Higham  v.  Iowa  State  Travelers' 
Ass'n,  394. 

Higson  v.  North  River  Ins.  Co., 
367. 

Hill,  In  re,  103. 

Hill  v.  Hite,  14. 

Hill  v.  Kuhlman,  291. 

Hill  v.  Northern  Pac.  R.  Co.,  390. 

Hill  v.  Phelps,  464. 

Hill  v.  United  States,  185. 

Hillegass  v.  United  States,  52. 

Hills  v.  McKimmiss  Co.,  86. 

Hills  &  Co.  v.  Hoover,  392. 

Hines,  In  re,  159. 

Hipolite  Egg  Co.  v.  United  States, 
79. 

Hirsch,  In  re,  102. 

Hirschuian,  In  re,  138. 

Hiscock  v.  Mertens,  160. 

Hixon,  In  re,  172. 

H.  J.  Decker,  Jr.,  &  Co.  v.  South- 
ern R.  Co.,  269. 

H.  L.  Bruett  v.  Austin  Drainage 
Excavation  Co.,  251. 

Hobbs  Mfg.  Co.  v.  Gooding,  291. 

Hobson  v.  McArthur,  424. 

Hodges  v.  Kimball,  399. 

Hoeffner  v.  United  States,  32. 

Hoge  -v.  Canton  Ins.  Office  of 
Hong  Kong,  338. 

Holden  v.  Stratton,  161,  483,  486, 
487,  524. 

Holland  v.  Challen,  419. 

Hollenback  v.  Elmore  &  H.  Con- 
tracting Co.,  247. 

Hollins  v.  Brierfleld  Coal  &  Iron 
Co.,  225. 


CASES  CITED 


719 


[The  figures  refer  to  pages] 


Holmes  v.  Goldsmith,  282. 
Holmes  v.  Jennlson,  223. 
Holmes  v.  United  States,  185. 
Holt  v.   Crucible    Steel   Co.,   117, 

146. 

Holt  v.  Indiana  Mfg.  Co.,  491. 
Holt  v.  Manufacturing  Co.,  78. 
Holt  v.  United  States,  60,  63. 
Holton  v.  Helvetia- Swiss  Fire  Ins. 

Co.    of   St.    Gall,    Switzerland, 

353. 
Home  Land  &  Cattle  Co.  v.  Mc- 

Namara,  457. 

Home  Life  Ins.  Co.  v.  Dunn,  371. 
Home  St.  R.  Co.  v.  Lincoln,  413, 

465. 

Homer  v.  United  States,  193. 
Hooe  v  Jamieson,  244. 
Hooker   v.    Interstate    Commerce 

Commission,  388. 
Hoover,  In  re,  181. 
Hopkins  v.  Stave  Co.,  260. 
Hopkins  v.  United  States,  195. 
Hopt  v.'  Utah,  60,  63. 
Horn  v.  Lockhart,  260. 
Horn  v.  Pere  Marquette  R.  Co., 

266. 
Homer  v.  United   States,  34,  36, 

511. 

H.  O.  Roberts  Co.,  In  re,  165. 
Hosmer  v.  Jewett,  147. 
Hovey  v.  Elliott,  437. 
Hovey  v.  McDonald,  558,  561. 
Howard  v.  Fleming,  207. 
Howard  v.  Gold  Reefs  of  Georgia, 

361. 
Howard  v.  United  States,  39,  238, 

247,   523. 

Howden,  In  re,  171. 
H.  T.  Smith  Co.  v.  Minetto-Meri- 

den   Co.,   19. 
Hubbard  v.  Tod,  519. 
Hudson  River  Electric  Co.,  In  re, 

115. 

Huff  v.  Union  Nat.  Bank,  82. 
Hughey  v.  Sullivan,  411. 


Huguley  Mfg.  Co.  v.  Galeton  Cot- 
ton Mills,  479,  521. 

Hukill  v.  Maysville  &  B.  S.  R.  Co., 
324. 

Hulac  v.  Chicago  &  N.  Wl  R.  Co., 
319. 

Hulbert  v.  Chicago,  538. 

Hultberg  v.  Anderson,  275,  279. 

Humbert,  In  re,  121,  127. 

Humes  v.  United  States,  63. 

Humphrey  v.  Tatman,  151. 

Hunnicutt  v.  Peyton,  408. 

Hunter  v.  Martin,  529. 

Hunter  v.  Wood,  208. 

Huntington  v.  Laidley,  500. 

Hurst,  In  re,  154. 

Huskins  v.  Railroad  Co.,  369. 

Hutchinson  v.  Le  Roy,  484. 

Hutchinson  v.  Otis,  484,  486. 

Hutchinson,  Pierce  &  Co.  v. 
Loewy,  523. 

Hyatt  v.  People,  205. 

Hyde  v.  Ruble,  332. 

Hyde  v.  United  States,  37. 

Hyman,  In  re,  178. 

Hyman  v.  Chales,  436. 


lasigi  v.  Van  De  Carr,  82. 
Idaho  &  O.  Land  Imp.  Co.  v.  Brad- 
bury, 566. 

Idzall,  In  re,  175,  177. 
Illinois  Car  &  Equipment  Co.  v. 

Linstroth  Wagon  Co.,  410. 
Illinois    Cent.    R.    Co.   v.   Adams, 

239,    290,    503,    513. 
Illinois  Cent.  R.  Co.  v.  Hart,  19. 
Inbusch  v.  Farwell,  257. 
Independent  School  Dist.  of  Ack- 

ley  v.  Hall,  553. 
Independent  School  Dist.  of  Sioux 

City,  Iowa,  v.  Rew,  280. 
Indiana   v.    Lake   Erie  &   W.   R. 

Co..  296,  311. 
Indiana  ex  rel.  Stanton  v.  Glover. 

247. 


720 


CASES  CITED 


[The  figures  refer  to  pages] 


Indiana  Mfg.  Co.  v.  Koehne,  239. 
Indianapolis   &   St.    L.    R.  Co.   v. 

Horst,  397,  410,  411. 
Industrial  Cold  Storage  &  Ice  Co., 

In  re,  163. 

Ingersoll  v.  Coram,  266. 
Inglehart  v.  Stansbury,  556. 
Ingram  v.  Wilson,  484. 
Interior  Const.  &  Imp.  Co.  v.  Gib- 

ney,  500. 
International  Tooth  Crown  Co.  v. 

Hanks'  Dental  Ass'n,  403. 
International  Trust  Co.  v.  Weeks, 

82. 
Interstate  Commerce  Commission 

v.  Atchison,  T.  &  S.  F.  R.  Co., 

488. 
Interstate  Commerce  Commission 

v.  Baird,  488,  513. 
Interstate  Commerce  Commission 

v.  Baltimore  &  O.  R.  Co.,  388. 
Interstate  Commerce  Commission 

v.  Union  Pac.  R.  Co.,  79. 
Ireton   v.   Pennsylvania   Co.,   334. 
Iroquois  Transp.   Co.  v.   Delaney 

Fargo"  &  Iron  Co.,  533. 
Irvine  Co.  v.  Bond,  288. 
Irving  v.  Joint  District,  251. 
Isaacs  v.  United  States,  61. 


J 


Jackson  v.  Chicago,  R.  I.  &  P.  R. 

Co.,   334. 

Jackson  v.  Jackson,  256. 
Jackson  Brick  &  Tile  Co.,  In  re, 

151. 
Jackson  &  Sharp  Co.  v.  Pearson, 

340. 

Jacob  v.  United  States,  226. 
Jacobs  v.  George,  560. 
James  v.  Stone  &  Co.,  524. 
Jaquith  v.  Alden,  134,  150. 
Jaquith  v.  Rowley,  153,  155. 
Jarecki   Mfg.   Co.   v.   McElwaine, 

172. 
Jefferson,  The,  500. 


Jefferson  Hotel  Co.  v.  Brumbaugh, 

454. 

Jehu,  In  re,  102. 
Jenks   v.   Brewster,  294. 
Jennings  v.  Stannus,  95. 
Jenns  v.  Landes,  262. 
Jetton  v.  University  of  the  South, 

239. 
John  A.  Etheridge  Furniture  Co., 

In  re,  105,  126. 

John  J.  Lafferty  &  Bro.,  In  re,  139. 
Johnson,   In  re,   161,    170. 
Johnson  v.  Crawford,  91. 
Johnson  v.  F.  C.  Austin  Mfg.  Co., 

365. 

Johnson  v.  Ford,  260. 
Johnson  v.  Hanley,  Hove  Co.,  154. 
Johnson   v.    United   States,   53. 
Johnson  v.  Wald,  110. 
Johnston  v.  United  States,  49. 
Jolly  v.  United  States,  66. 
Jones,  In  re,  133,  241. 
Jones  v.  Andrews,  266,  298,  440. 
Jones  v.  Byrne,  461. 
Jones  v.  League,  286. 
Jones  v.  Mosher,  369. 
Jones  v.  Springer,  112. 
Jones  v.   United  States,  38. 
Joseph  Dry  Goods  Co.  v.  Hecht, 

260,   576. 
Joseph  Wild  &  Co.  v.  Provident 

Life  &  Trust  Co.,  134. 
Junck,  In  re,  102. 

K 

Kanouse  v.  Martin,  227. 
Kansas  v.  Colorado,  8,  385. 
Kansas  v.  United  States,  386. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 

Daughtry,  366. 
Kansas  City   Gas  Co.  v.  Kansas 

City,  430. 
Kansas    City    N.    W.    R.    Co.    v. 

Zimmerman,  476. 
Karstendick,  In  re,  41. 
Katalla  Co.  v.  Rones,  359. 


CASES   CITED 
[The  figures  refer  to  pages] 


72] 


Kaw  Valley  Drainage  Dist.  of 
Wyandotte  County,  Kan.,  v. 
Metropolitan  Water  Co.,  306. 

Kaye  v.  United  States,  66. 

Keasbey  &  Mattison  Co.,  In  re, 
267. 

Keerl  v.  State  of  Montana,  536. 

Kehler,  In  re,  95. 

Keizo  v.  Henry,  203. 

Keller  v.  United  States,  193. 

Kelley  v.  Boettcher,  426. 

Kelly,  In  re,  123. 

Kelly  v.  Mississippi  Valley  Coal- 
ing Co.,  260. 

Kennard  v.  Nebraska,  534. 

Kennedy  v.  Custer,  445. 

Kennedy  v.  Gibson,  82. 

Kenney,  In  re,  151. 

Kentucky  v.  Powers,  344. 

Kentucky  Coal  Lands  Co.  v.  Min- 
eral Development  Co.,  272,  274. 

Kentucky  Nat  Bank  v.  Carley, 
170. 

Kentucky  Union  Co.  v.  Common- 
wealth of  Kentucky,  540. 

Kenyon,  In  re,  177. 

Keppel  v.  Tiffin  Sav.  Bank,  133. 

Kern  v.  Huidekoper,  374. 

Kerrison  v.  Stewart,  259. 

Keystone  Manganese  &  Iron  Co. 
v.  Martin,  546. 

Key  West  Cigar  Mfg.  Ass'n  v. 
Rosenbloom,  255. 

Kibbler  v.  St.  Louis  &  S.  F.  R. 
Co.,  268. 

Kidder  v.  Featteau,  378. 

Kiernan  v.  Portland,  533. 

Kimberly  v.  Arms,  453,  454. 

Kingsbury  v.  Kingsbury,  303. 

Kinkead,  In  re,  96. 

Kinney,  Ex  parte,  207. 

Kinney  v.  Columbia  Savings  & 
Loan  Ass'n,  355. 

Kirby  v.  American  Soda  Fountain 
Co.,  472,  513. 

Kirby  v.  Chicago  &  N.  W.  R.  Co., 
306,  374. 

HUGHES  FED.PB.(2o  ED.) — 46 


Kirby  v.  United  States,. 57. 
Kirwan  v.  Murphy,   562. 
Kittler,  In  re,  103. 
Knight  v.   Illinois   Cent.   R.   Co., 

397,  404,  408,  414. 
Knight  v.  International  &  G.  N.  R. 

Co.,  366. 

Knight  v.  Shelton,  80. 
Knott  v.  Putnam,  181. 
Knox  County  v.  Ninth  Nat.  Bank, 

15. 

Kohl  v.  Lehiback,  214. 
Kohl  v.  United  States,  223. 
Kohl-Hepp  Brick  Co.,  In  re,  163. 
Koon  v.   Phoenix   Mut.   Life   Ins. 

Co.,  411. 

Krippendorf  v.  Hyde,  300. 
Kuchler  v.  Greene,  258. 
Kuhn  v.  Fairmont  Coal  Co.,  14. 
Kurtz  v.  Moffitt,  232. 
Kyle  v.  Chicago,  R.  I.  &  P.  R.  Co., 

354,  356. 


Labette  County  Com'rs  v.  United 

States,  296. 
Ladd  v.  Oxnard,  427. 
Ladew  v.  Tennessee  Copper  Co., 

260,  270,  275. 
Lafayette  County,  Mo.,  v.  Wonder- 

ly,  297. 

Lafferty  &  Bro.,  In  re,  139. 
Lafleche,  In  re,  177. 
Laird,  In  re,  146. 
Lake  County  v.  Dudley,  280,  290. 
Lake  Nat.  Bank  v.  Wolfeborough 

Sav.  Bank,  226. 
Lake    Shore   &   M.    S.   R.   Co.   v. 

Prentice,  18. 
Lamar  v.  Micou,  245. 
Lamaster  v.  Keeler,  416. 
Lamm  v.  Parrott  Silver  &  Copper 

Co.,  334,  336. 
Lampasas  v.  Bell,  512. 
Lancaster,  In  re,  212. 
Land  Co.  of  New  Mexico  v.  Elk- 
ins,  263. 


722 


CASES   CITED 


[The  figures  refer  to  pages] 


Lange  v.  Union  Pac.  R.  Co.,  399 

Lanier  v.  Nash,  287. 

Lansing  v.  Manton,  125. 

Lanz  v.  Randall,  245. 

Larabee  v.  Dolley,  232. 

Latta  v.  Kilbourn,  445. 

Lau  Ow  Bew,  Ex  parte,  518,  520 

Laura,  The,  73. 

Lawrence   v.    Southern   Pac.   Co. 

322,  362. 

Lazoris,  In  re,  145. 
Leader,  The,  In  re,  158. 
Leas  &  McVitty  v.  Merriman,  393. 
Leather       Manufacturers'       Nat. 

Bank  v.  Cooper,  82. 
Ledbetter  v.  United  States,  44,  67. 
Lees  v.  United  States,  65,  71. 
Lehigh  Min.   &   Mfg.   Co.,   In  re, 

499. 
Lehigh  Min.  &  Mfg.  Co.  v.  Kelly, 

287. 
Leidigh  Carriage  Co.  v.   Stengel, 

90. 

Leland,  In  re,  97. 
Lengel   v.   American    Smelting   & 

Refining  Co.,  276. 
Lennon,  Ex  parte,  240,  475,  481. 
Le  Sassier  v.  Kennedy,  241. 
Leslie,  In  re,  171,  175. 
Levin,  In  re,  142. 
Lewis,  In  re,  214. 
Lewis  v.   Cincinnati,   N.   O.  &  T. 

P.    R.    Co.,   332. 
Lewis  v.  United  States,  163. 
Lewis  Blind  Stitch  Co.  v.  Arbetter 

Felling  Mach.  Co.,  270. 
Lewis  Mercantile  Co.  v.  Klepner, 

230. 

Lewis  Pub.  Co.  v.  Wyman,  349. 
L.  Humbert  Co.,  In  re,  121,  127. 
Lincoln,  In  re,  213. 
Lincoln  v.  Power,  404,  405. 
Lincoln  Co.  v.  Luning,  306,  384. 
Lincoln  Tp.  v.  Cambria  Iron  Co., 

411. 

Lindsay  v.  First  Nat.  Bank,  389. 
Lindsay-Bitton  Live  Stock  Co.  v. 
Justice,  398. 


Liudsley  &  Co.,  In  re,  147. 
Linehan  Ry.  Transfer  Co.  v.  Pen- 

dergrass,  233. 
Lipke,  In  re,  141. 
Little  v.  Giles,  336. 
Little  Ann,  The,  70. 
Little  York  Gold  Washing  &  Wa- 
ter Co.  v.  Keyes,  236. 
Livingstone  v.  Heineman,  486. 
Lockard  v.  Asher  Lumber  Co.,  14. 
Lockard  v.  St.  Louis  &  S.   F.  R. 

Co.,  334. 

Lockwood  v.  Exchange  Bank,  166. 
Loeb  v.    Columbia   Tp.   Trustees, 

15,  281.  508. 
Loen  v.  Township,  508. 
Logan,  In  re,  170. 
Logan  v.  Goodwin,  395. 
Logan  v.  United  States,  12,  50,  51, 

59. 

Loney,  In  re,  211. 
Loop  v.  Winter's  Estate,  364,  373, 

380. 

Lord  v.  Lehigh  Val.  R.  Co.,  366. 
Louisiana  v.  Mississippi,  384. 
Louisiana  v.  Texas,  386. 
Louisiana  ex  rel.  Hubert  v.  New 

Orleans,  535. 

Louisiana  Nav.  Co.  v.  Oyster  Com- 
mission of  Louisiana,  532,  568. 
Louisville,  C.  &  C.  R.  Co.  v.  Let- 
son,  249. 
Louisville,  E.   &  St.  L.  R.  Co.  v. 

Wilson,  97. 
Louisville,    N.  A.  &  C.  R.   Co.  v. 

Louisville  Trust  Co.,  252,  253. 
Louisville,  N.  A.  &  C.  R.  Co.  v. 

Pope,  517. 
Louisville  Public  Warehouse  Co. 

v.  Collector  of  Customs,  473. 
Louisville  Trust  Co.  v.  Coiningor, 

127. 
Louisville    Underwriters,    In    re, 

270. 
Louisville  &  N.  R.   Co.  v.  F.  W. 

Cook  Brewing  Co.,  521. 
Louisville  &  N.  R.  Co.  v.  Ide,  332. 


CASES  CITED 


723 


[The  figures  refer  to  pages] 


Louisville  &  N.  R.  Co.  v.  Mottley, 
236. 

Louisville  &  X.  R.  Co.  v.  Roberts, 
405. 

Louisville  &  N.  R.  Co.  v.  Smith, 
541. 

Louisville  &  N.  R.  Co.  v.  Wangel- 
in,  330. 

Lovell  v.  Johnson,  446. 

Loving,  In  re,  483. 

Lowndes  v.  Huntington,  16. 

Low  Wah  Suey  v.  Backus,  194. 

Loy  v.  Alston,  298. 

Luckhardt,  In  re,  98. 

Luhrs  v.  Hancock,  415. 

Lyon  County,  Iowa,  v.  Keene  Five- 
Cent  Sav.  Bank,  280. 

Lyons  Beet  Sugar  Refining  Co., 
In  re,  136. 

Lytle  v.  Lansing,  15. 

M 

Mabey,  The,  578. 

McAllister  v.  Chesapeake  &  O.  R, 

Co.,  333. 

McAulay  v.  Moody,  269. 
McBryde,  In  re,  137. 
McCain  v.  Des  Moines,  237,  238. 
McCarty,  In  re,  175. 
McClaughry  v.  Deming,  204. 
McClellan  v.  Carland,  221,  493. 
McConihay  v.  Wright,  224. 
McCornrick  v.  Market  Nat.  Bank, 

536. 

McCorquodale  v.  Texas,  540. 
McCrary,  In  re,  166. 
McCrea  v.  Parsons,  402,  407. 
McDaniel  v.  Traylor,  233. 
McDavid  Lumber  Co.,  In  re,  165. 
McDonald  v.  Tefft-Weller  Co.,  96. 
McDonnell  v.  Jordan,  371. 
McDowell  v.  United  States,  24. 
McEldowney  v.  Card,  5. 
McElroy  v.  United  States,  47. 
Macfarland  v.  Brown,  567. 
Macfarland  v.  Byrnes,  567. 
McGahan  v.  Anderson,  166. 
McGilvra  v.  Ross,  240. 


McGourkey  v.  Toledo  &  O.  R.  Co., 

546. 
McGregor    v.    Vermont    Loan    & 

Trust  Co.,  4C4. 
McGuire    v.    Great    Northern    R. 

Co.,  324. 

McKenzie,  In  re,  561,  576,  577. 
Mackin  v.  United  States,  40. 
McKinney  v.   Supreme   Lodge  A. 

O.  U.  W.,  389. 
McKissac,  In  re,  166. 
McKnight  v.  James,  531. 
McLish  v.  Roff,  476. 
McLoon,  In  re,  108. 
McMicken  v.  Perin,  457. 
McMullen  v.  Halleck   Cattle  Co., 

336. 

McNaul    v.   West   Indian   Securi- 
ties Corp.,  328. 
Macon    Grocery    Co.    v.    Atlantic 

Coast  Line  R.  Co.,  265. 
Madisonville  Traction  Co.   v.   St. 

Bernard  Min.  Co.,  222,  306,  373. 
Magann  v.  Segal,  461. 
Mahoney  v.  Ward,  106. 
Mahoning  Val.  R,  Co.  v.  O'Hara, 

263. 

Malony  v.  Adsit,  408. 
Manderson,  In  re,  202. 
Mannington  v.   Hocking   Val.    R, 

Co.,  373,  379. 
Maples,   In  re,  179. 
Marach  v.  Columbia  Box  Co.,  334. 
Marcus,  In  re,  177. 
Marine  Machine  &  Conveyor  Co., 

In  re,  93,  117. 

Markham  v.  United  States,  45. 
Marshall  Paper   Co.,   In  re,   168, 

175. 

Martin,  In  re,  151. 
Martin  v.  Baltimore  &  O.  R.  Co., 

366,  367. 

Martin  v.  Hunter,  529. 
Martin  v.  Snyder,  328. 
Martinton  v.  Fairbanks,  549. 
Martorana,  In  re,  262. 
Marvin,  In  re,  95. 
Mason  v.  Dullagham,  260. 


724 


CASES  CITED 


[The  figures  refer  to  pages] 


Mason  City  &  Ft.  D.  R.  Co.  v. 
Boyutou,  329. 

Massachusetts  &  S.  Const.  Co.  v. 
Cane  Creek  Tp.,  260. 

Masterson  v.  Herndou,  556. 

Mather  v.  Coe,  128. 

Matheson  v.  United  States,  58. 

Mathieson  v.  Craven,  289. 

Matthews  Consol.  Slate  Co.,  In 
re,  94. 

Mattingly  v.  Northwestern  Vir- 
ginia R.  Co.,  353. 

Mattox  v.  United  States,  57,  67. 

Mauzy,  In  re,  181. 

May  v.  Tenney,  14. 

Mayer,  In  re,  143. 

Mayer  v.  Karaghuesian,  362. 

Mayfield,  Ex  parte,  215. 

Maynard  v.  Hecht,  498. 

Mayo  v.  Dockery,  313. 

Mays  v.  Newlin,  370. 

Mead  v.  Chesbrough  Bldg.  Co., 
396. 

Mead  v.  'Darling,  405. 

Means  v.  Dowd,  151. 

Mechanical  Appliance  Co.  v.  Gas- 
tleman,  379,  503. 

Mecke  v.  Valleytown  Mineral  Co., 
335,  370. 

Medley,  In  re,  216. 

Meeker  v.  Lehigh  Val.  R.  Co., 
477. 

Meister  v.  Moore,  17. 

Mellen  v.  Moline  Malleable  Iron 
Works,  275,  277. 

Memphis  Sav.  Bank  v.  Houchens, 
294. 

Memphis  &  C.  R.  Co.  v.  Alabama, 
252. 

Menge  v.  Warriner,  413. 

Mercantile  Mut.  Ins.  Co.  v.  Fol- 
som,  549. 

Mercantile  Nat.  Bank  v.  Carpen- 
ter, 443. 

Merchants'  Cotton  Press  &  Stor- 
age Co.  v.  Insurance  Co.  of 
North  America,  326,  335. 


Merchants'  Heat  &  Light  Co.  v. 
James  B.  Clow  &  Sons,  230,  304. 

Mercur,  In  re,  101,  105. 

Merritt  v.  Bowdoin  College,  510. 

Metcalf  Bros.  v.  Barker,  112,  124, 
152. 

Metropolitan  Ry.  Receivership, 
441. 

Metropolitan  Water  Co.  v.  Kan- 
sas Valley  Drainage  Dist.  of 
Wyandotte  County,  576. 

Metzker  v.  Bonebrake,   101. 

Mexican  Cent.  R.  Co.  v.  Duthie, 
399. 

Mexican  Cent.  R.  Co.  v.  Eckinan, 
247. 

Mexican  Cent.  R.  Co.  v.  Pinkney, 
396. 

Mexican  Nat.  R.  Co.  v.  Davidson, 
316,  321,  322. 

Mexico  Hardware  Co.,  In  re,  487. 

Meyer,  In  re,  114. 

Meyers,  In  re,  168,  182. 

Michigan  Aluminum  F.  Co.  v.  Alu- 
minum Castings  Co.,  265. 

Millan  v.  Exchange  Bank,  104, 
118. 

Miller  v.  Clifford,  331. 

Miller  v.  Guasti,  180. 

Miller  v.  Le  Mars  Nat.  Bank,  318. 

Miller  v.  Mutual  Reserve  Fund 
Life  Ass'n,  428. 

Miller  &  Lux  v.  East  Side  Canal 
&  Irrigation  Co.,  287. 

Milwaukee  &  M.  R.  Co.  v.  Mil- 
waukee &  St.  P.  R,  Co.,  298. 

Miners'  Brewing  Co.,  In  re,  163. 

Mingo  Valley  Creamery  Ass'n,  In 
re,  118. 

Minnesota  v.  Brundage,  209,  210. 

Minnesota  v.  Northern  Securities 
Co.,  258,  313,  358. 

Minor  v.  Happersett,  245. 

Mississippi  Mills  v.  Cohn,  279, 
419. 

Mississippi  Railroad  Commission 
v.  Illinois  Cent.  R.  Co.,  489. 


CASES  CITED 


725 


[The  figures  refer  to  pages] 


Mississippi  &  M.  R.  Co.  v.  Ward, 
232. 

Mississippi  &  Rum  River  Boom 
Co.  v.  Patterson,  222. 

Missouri  v.  Illinois,  385. 

Missouri  ex  rel.  Hill  v.  Dockery, 
533. 

Missouri,  K.  &  T.  R.  Co.  v.  El- 
liott, 531. 

Missouri,  K.  &  T.  R.  Co.  v.  Wulf, 
399. 

Missouri,  K.  &  T.  Trust  Co.  v. 
Krumseig,  17. 

Missouri  1'ac.  R,  Co.  v.  Castle,  79, 
251,  506. 

Missouri  Pac.  R.  Co.  v.  Fitzger- 
ald, 380. 

Missouri  Valley  Land  Co.  v. 
Weise,  571. 

Missouri  &  K.  I.  R.  Co.  v.  Olathe, 
569. 

Mitchell  v.  Furman,  512. 

Mitchell  v.  International  Tailor- 
ing Co.,  446. 

Mitchell  v.  United  States,  243. 

Mitchell  Coal  ofc  Coke  Co.  v.  Penn- 
sylvania R.  Co.,  488. 

Moch  v.  Bank,  136. 

Moelle  v.  Sherwood,  438,  463. 

Mondou  v.  New  York,  N.  H.  &  H. 
R.  Co.,  79. 

Monongahela  Bridge  Co.  v.  Unit- 
ed States,  505. 

Monroe,  In  re,  174. 

Monroe  v.  Williamson,  370. 

Montague  &  Co.  v.  Lowry,  195. 

Montana  Mill.  Co.  v.  St.  Louis 
Min.  &  Mill.  Co.,  562. 

Montgomery,  In  re,  202. 

Montgomery  v.  Anderson,  546. 

Montgomery  County  v.  Cochran, 
340,  341,  343. 

Moore,  In  re,  135,  321. 

Moore  v.  Missouri,  54. 

Moore  Bros.  Glass  Co.  v.  Drevet 
Mfg.  Co.,  285. 

Morales,  In  re,  137. 


Moran  v.  Dillingham,  470. 
Morau  v.  Sturges,  430,  431. 
Morgan  &  Williams,  In  re,  110. 
Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v. 

Texas  Cent.  R.  Co.,  299. 
Morning  Journal  Ass'n  v.   Smith, 

397. 

Morris  v.  Gilmer,  246,  286,  290. 
Morris  v.  United  States,  67. 
Morrisdale   Coal  Co.   v.   Pennsyl- 
vania R.  Co.,  477. 
Morrow,  In  re,  176. 
Moses      v.      Lawrence      County 

Bank,  9. 
Motes   v.   United    States,    57,   68, 

509,  510. 

Moulton  v.  Coburn,  115. 
Mound  Mines  Co.  v.   Hawthorne, 

124. 

Mower  v.  Fletcher,  569. 
Mowrey  v.  Indianapolis  &  C.  R. 

Co.,  428. 

Moyer,  In  re,  113. 
Mudd,  In  re,  172. 
Mueller,  In  re,  483. 
Mueller  v.  Nugent,  124,  153,  483. 
Mullen    v.    Western    Union    Beef 

Co.,  531. 

Muller,  In  re,  86. 
Muller  v.  Chicago,  I.  &  L.  R.  Co., 

356. 

Muller  v.  Dows,  461. 
Mullin  v.  United  States,  238. 
Municipal    Inv.   Co.   v.   Gardiner, 

276. 

Murhard     Estate     Co.     v.     Port- 
land &  S.  R.  Co.,  202,  411. 
Murphy    v.    Herring-Hall-Marvin 

Safe  Co.,  379. 

Murphy  v.  Massachusetts,  54. 
Murray,  In  re,  101. 
Muse  v.  Arlington  Hotel  Co.,  508, 

511. 

Mussina  v.  Cavazos,  551,  554. 
Mutual  Life  Ins.  Co.  v.  McGrew, 

537. 


726 


CASES  CITED 


[The  figures  refer  to  pages] 


Mutual  Life  Ins.  Co.  of  New  York 

v.  Langley,  364. 
Mutual  Reserve  Fund  Life  Ass'n 

v.  Phelps,  293. 
Myers  v.  Murray,   Nelson  &  Co., 

361. 
Myrick  v.  Michigan  Cent.  R.  Co., 

18. 

N 

Nashua  &  L.  R.  Corp.  v.  Boston 

&  L.  R.  Corp.,  254,  361. 
Nashville,  C.  &   St.  L.  R.   Co.  v. 

Alabama,  36. 
Nashville,   C.  &  St.  L.   R.  Co.  v. 

McConnell,  232. 
Natal  v.  Louisiana,  558. 
National    Bank    of   Commerce   v. 

Allen,  234. 
National    Bank    of    Jefferson    v. 

Fore,  82. 
National  Bank     of     Rondout     v. 

Smith,  562. 
National  Cash  Register  Co.  v.  Le- 

land,  403. 
National  Exch.    Bank    v.    Peters, 

496. 
National  Min.     Exploration     Co., 

In  re,  460. 
National   Nickel   Co.  v.   National 

Nickel  Syndicate,  460. 
National  S.  S.  Co.  v.  Tugman,  250, 

354,  377. 
National     Surety     Co.     v.     State 

Bank,  224. 

Neagle,  In  re,  208,  211,  214,  216. 
Neal  v.  Delaware,  80,  345. 
Neale  v.  Foster,  342. 
Neasmith,  In  re,  129. 
Nebraska,  Ex  parte,  322. 
Nederland  Life  Ins.  Co.  v.  Hall, 

397. 

Neel  v.  Pennsylvania  Co.,  245. 
Nelson,  In  re,  103,  104. 
Neustadter  v.  Dry  Goods  Co.,  106. 
Nevada  Nickel  Syndicate  v.  Nick- 
el Co.,  460. 
Newbery   v.   Wilkinson,   9. 


Newconib  v.  Wood,  411. 

Newell  v.  Baltimore  &  O.  R.  Co., 
268. 

New  Hampshire  v.  Louisiana,  385. 

Newman  v.  Schwerin,  366. 

New  Orleans  v.  Benjamin,  279, 
517. 

New  Orleans  v.  Fisher,  293. 

New  Orleans  v.  Games'  Adm'r, 
283. 

New  Orleans  v.  Quinlan,  280. 

New  Orleans  v.  Warner,  457. 

New  Orleans,  M.  &  T.  R.  Co.  v. 
Mississippi,  237. 

New  Orleans  Pac.  R.  Co.  v.  Park- 
er, 233. 

New  Orleans,  S.  F.  &  L.  R.  Co.  v. 
Delamore,  536. 

New  Orleans  Waterworks  Co.  v. 
New  Orleans,  260. 

New  Providence  Tp.  v.  Halsey, 
287. 

New  York   v.  Bennett,  346. 

New  York  v.  Bleecker  St.  &  F.  F. 
R.  Co.,  315. 

New  York  v.  Eno,  210. 

New  York  C.  &  H.  R.  Co.  v.  Unit- 
ed States,  71. 

New  York  Cent.  R.  Co.  v.  Lock- 
wood,  7,  18. 

New  York  Cent.  &  H.  R.  Co.  v. 
United  States,  48. 

New  York  Cent.  &  H.  R.  R.  Co. 
v.  New  York,  541. 

New  York  Continental  Jewall  Fil- 
tration Co.  v.  Sullivan,  396. 

New  York  Economical  Printing 
Co.,  In  re,  146. 

New  York  Life  Ins.  Co.  v.  Bangs, 
275. 

New  York  &  N.  E.  R.  Co.  v.  Hyde, 
408. 

New  York  &  O.  S.  S.  Co.  v.  Unit- 
ed States,  188. 

Nichols  v.  Chesapeake  &  O.  R. 
Co.,  334. 

Nichols  v.  Nichols,  245,  246. 


CASES  CITED 
[The  figures  refer  to  pages] 


727 


Nichols  Lumber  Co.  v.  Fransoii, 
263,  498. 

Nielsen,  Ex  parte,  205,  206. 

Noesen,  In  re,  138. 

Norcross  v.  Nathan,  86. 

Norfolk  &  P.  Traction  Co.  v.  Mil- 
ler, 19. 

Norfolk  &  S.  Turnpike  Co.  v.  Vir- 
ginia, 570. 

Norris  v.  Jackson,  549. 

North  American  Land  &  Timber 
Co.  v.  Watkins,  428. 

North  American  Transportation  & 
Trading  Co.  v.  Morrison,  229. 

Northampton  Portland  Cement 
Co.,  In  re,  117. 

Northern  Pac.  R.  Co.  v.  Amato, 
522. 

Northern  Pac.  R.  Co.  v.  Soder- 
berg,  243,  479. 

Northern  Securities  Co.  v.  United 
States,  513. 

North  Shore  Boom  &  Driving  Co> 
v.  Nicomen  Boom  Co.,  240. 

Northwestern  Fuel  Co.  v.  Brock, 
462. 

Norton,  In  re,  120,  435. 

Norton  v.  Hood,  146,  147. 

Norwood  v.  Baker,  238. 

Noyes  v.  Crawford,  281.  284. 

Nutter  v.  Mossberg,  464. 


Oakley  v.  Goodnow,  323. 
Ober  v.  Gallagher,  257. 
O'Callaghan  v.  O'Brien,  221. 
Oceanic  Steam  Nav.  Co.  v.  Stran- 

ahan,  194. 

O'Conor  v.  Texas,  328. 
Odhner  v.  Northern  Pac.  R.  Co., 

327. 

O'Dowd  v.  Russell,  572. 
O'Hare,  Ex  parte,  25. 
Ohio  v.  Thomas,  27. 
Ohio  &  M.  R.  Co.  v.  Wheeler,  252, 

254. 


O.  J.  Lewis  Mercantile  Co.  v. 
Klepner,  230. 

Olds  v.  Herman  H.  Hettler  Lum- 
ber Co.,  474. 

Omaha  Horse  R.  Co.  v.  Cable 
Tramway  Co.,  317. 

O'Neal  v.  United  States,  475,  492. 

O'Neill  v.  Wolcott  Min.  Co.,  287. 

Oregon  R.  &  Nav.  Co.  v.  Balfour, 
492. 

Oregon  Short  Line  &  U.  N.  R.  Co. 
v.  Skottowe,  313. 

O'Reilly  v.  Edrington,  557. 

Oro  Water,  Light  &  Power  Co.  v. 
Oroville,  426. 

Osborne,  In  re,  170. 

Osborne  v.  Perkins,   175,  486. 

Oscanyan  v.  Arms  Co.,  406. 

Overholt  &  Co.  v.  German-Ameri- 
can Ins.  Co.,  366. 

Overman  Wheel  Co.  v.  Pope  Mfg. 
Co.,  360,  365. 

Owens,  In  re,  88. 

Ozark  Land  Co.  v.  Leonard,  446. 


Pacific   Coast    R.    Co.    v.    United 

States,  79. 
Pacific  Live  Stock  Co.  v.  Hanley, 

441. 
Pacific  Northwest  Packing  Co.  v. 

Allen,   576. 
Pacific  R.  Co.  v.  Missouri  Pac.  R. 

Co.,  298. 
Pacific    Steam    Whaling    Co.    v. 

United  States,  221,  513. 
Page   v.   Edmunds,   147. 
Page  v.  Rogers,  133. 
Paige,  In  re,  128. 
Palliser,  In  re,  36. 
Palliser  v.  United  States,  36,  37. 
Panama   R.   Co.   v.   Napier   Ship- 
ping Co.,  519. 
Paquet,  In  re,  493. 
Paquete  Habana,   The,  472,   473, 

503,  530. 
Parker  v.  Ormsby,  285. 


728 


CASES  CITED 


[The  figures  refer  to  pages] 


Parker  v.  Vanderbilt,  342. 
Patterson,   In  re,  175. 
Patterson  v.  Railroad  Co.,  322. 
Pawlet  v.  Clark,  227. 
Payne  v.  Mies,  555. 
Peaslee  v.  Haberstro,  393. 
Peck,  In  re,  169. 
Peck  v.  Elliott,  291. 
Peden  v.  Bridge  Co.,  412. 
Peninsular  Iron  Co.  v.  Stone,  255. 
Penn  Mut.  Life  Ins.  Co.  v.  Austin, 

507,  513. 

Pennoyer  v.  Neff,  277. 
Pennsylvania  v.  Quicksilver  Min. 

Co.,  386. 
Pennsylvania  Co.,  In  re,  339,  341, 

342,  380. 

Pennsylvania  Co.  v.  Bender,  342. 
Pennsylvania    Consol.    Coal    Co., 

In  re,  94. 
People  of  New  York  v.  Bennett, 

346. 
People  of  State  of  New  York  v. 

Bleecker  St.  &  F.  F.  R.  Co.,  315. 
People's    Bank    of    Greenville    v. 

yEtna  Ins.  Co.,  364. 
People's    United    States   Bank   v. 

Goodwin,  349. 
Perego  v.  Dodge,  441. 
Perry  v.  Mechanics'  Mut.  Ins.  Co., 

397. 

Perry  Aldrich  Co.,  In  re,  94. 
Person   v.   Illinois   Cent.   R.   Co., 

323. 

Peters  v.  Gilchrist,  13. 
Peters  v.  United  States,  43,  48. 
Petterson,  Ex  parte,  244. 
Pettibone  v.  United  States,  25. 
Pettit  v.  Walshe,  481,  512. 
Pewabic  Min.   Co.  v.  Mason,  457. 
Phelps  v.   Mutual   Reserve  Fund 

Life  Ass'n,  293. 
Phelps  v.   Oaks,  286. 
Phenix  Ins.  Co.,  In  re,  422. 
Philadelphia,  B.  &  W.  R.  Co.  v. 

Schubert,  79. 
Phillips  v.  Gilbert,  419. 


Phillips  Co.  v.  Grand  Trunk  West- 
ern R.  Co.,  488. 
Phipps  v.  Harding,  18. 
Phoenix  Ins.  Co.  v.  Wulf,  435. 
Pickens  v.  Roy,  124. 
Pickens  Mfg.  Co.,  In  re,  91. 
Pickering  v.  Winch,  244. 
Pickham    v.    Wheeler-Bliss    Mfg. 

Co.,  230. 

Pierce  v.  Creecy,  510. 
Pierce  v.  United  States,  48,  58. 
Pilot,  The,  v.  United  States,  512. 
Pirie  v.  Trust  Co.,  133,  134. 
Pirie  v.  Tvedt,  332. 
Pittelkow,  In  re,  162,  163. 
Pittsburg  Lead  &  Zinc  Co.,  In  re, 

487. 

Plain  v.  Home,  185. 
Plant  Inv.  Co.  v.  Jacksonville,  T. 

&   W.  R.  Co.,   279. 
Plessy  v.  Ferguson,  80. 
Plymouth  Cordage  Co.,  In  re,  118. 
Pointer  v.   United  States,  47,  48, 

67,  400. 
Polleys  v.   Black  River  Imp.  Co., 

531. 

Pooley  v.  Luco,  262,  326. 
Pope  v.  Louisville,  N.  A.  &  C.  R. 

Co.,   490. 

Pope  v.  Williams,  245. 
Poppenhauser      v.      India-Rubber 

Comb  Co.,  245. 
Post  v.  Buckley,  259. 
Postal  Tel.  Cable  Co.  v.  Alabama, 

246. 

Postmaster  General  v.  Early,  326. 
Pounds  v.  United  States,  67. 
Powers  v.  Chesapeake  &  O.  R.  Co., 

354,  369,  380. 
Pratt,  In  re,  95. 
Pratt  v.  Paris  Gaslight  &  Coke 

Co.,  242. 

Presto,  The,  402. 
Preston  v.  Calloway,  293. 
Price  v.  Henkel,  35. 
Price  v.  McCarty,  35. 
Price  v.  United  States,  60,  189. 
Prince  &  Walter,  In  re,  164. 


CASES  CITED 
[The  figures  refer  to  pages] 


729 


Proctor  &  Gamble  Co.  v.  United 

States,  388. 

Proudfoot,  In  re,  165. 
Providence  &  N.  Y.   S.   S.  Co.  v. 

Hill  Mfg.  Co.,  431. 
Provident    Life    &   Trust   Co.    of 

Philadelphia  v.  Camden  &  T.  R. 

Co.,  438. 
Provident  Sav.  Life  Assur.  Soc.  v. 

Ford.  240. 
Puget  Sound  Sheet  Metal  Works 

v.   Great  Northern  R.  Co.,  321. 
Puleston  v.  United  States,  436. 
Pullian,  In  re,  168. 
Pullman's    Palace   Car    v.    Wash- 
burn,  297. 
Purdy  v.  Wallace,  Muller  &  Co., 

304. 

Putman,  In  re,  139. 
Putnam  v.  Ingraham,   330. 


Quartz  Gold  Min.  Co.,  In  re,  117. 
Queens  Ins.  Co.  v.  Peters,  381. 
Quincy  v.  Steel,  290. 
Quinton  v.  Neville,  454. 


Railroad  Commission  of  Ohio  v. 
Worthington,  79,  489. 

Rainey  v.  Herbert,  232,  233. 

Ralston,  In  re,  558. 

Rand  v.  Walker,  336. 

Ransford,  In  re,  151. 

Reading  Hosiery  Co.,  In  re,  135. 

KeugHii  v.  United  States,  60. 

Heardon  v.  Balaklala  Cousol.  Cop- 
per Co.,  399. 

Rector  v.  City  Deposit  Bank  Co., 
536,  541. 

Reed,  In  re,  176,  178. 

Reed  v.  Hardeman  Co.,  354. 

Reedy  v.  Western  Electric  Co., 
437. 

Reichman,  In  re,  112. 

Reid  Wrecking  Co.  v.  United 
States,  188. 


Reisenberg,  In  re,  230. 
Removal  Cases,  324,  354,  364. 
Remsen   v.   C.   F.  Blauke   Tea   & 

Coffee  Co.,  374. 
Republic    of   Colombia    v.    Cauca 

Co.,  261. 

Resolute,  The,  474. 
Rexford   v.   Brunswick-Balke-Col- 

lender  Co.,  470. 

Reynolds  v.  United  States,  57. 
Rhode    Island    v.    Massachusetts, 

384. 

Ribas  v.  United  States,  185. 
Rice  v.  Ames,  29,  48,  481,  512. 
Richards  v.  United  States,  64. 
Richardson  v.  Shaw,  108. 
Richardson  v.  United  States,  65. 
Rickey  Land  &  Cattle  Co.  v.  Mil- 
ler &  Lux,  299. 
Riddle's  Sons,  In  re,  150. 
Riggin  v.  Magwire,  137. 
Rike  v.  Floyd,  342. 
Riley  v.  Warden,  97. 
Ripper  v.  United  States,  60. 
Risteen,  In  re,  435. 
Roach,  Ex  parte,  27. 
Roach  v.  Hulings,  4l?3. 
Robb  v.  Connelly,  209. 
Roberts  v.  Lewis,  398. 
Roberts  v.  Pacific  &  A.  R.  &  Nav. 

Co.,  326,  355. 
Roberts  Co.,  In  re,  165. 
Robertson  v.  Conway,  234. 
Robertson  v.  Perkins,  407. 
Robertson  v.  Union  Potteries  Co., 

94. 

Robinson  v.  Anderson,  288. 
Robinson  v.  Caldwell,  478,  498. 
Roche,   In  re,  486. 
Roeber,  In  re,  146. 
Roger  Brown  &  Co.,  In  re,  162. 
Rogers  v.  United  States,  45. 
Rogers'  Mill.  Co.,  In  re,  158. 
Rollins   Gold  &   Silver   Min.  Co., 

In  re,  117. 

Romanow,  In  re,  105,  115. 
Rome  Planing  Mill  Co.,  In  re,  110, 

112,  129. 


730 


CASES  CITED 


[The  figures  refer  to  pages] 


Rondot  v.  Rogers  Tp.,  263. 

Root  v.  Woolworth,  292,  462. 

Rosen  v.  United  States,  44. 

Rosenbauui  v.  Bauer,  222,  296. 

Rosencrans  v.   United   States,  44. 

Rosenthal  v.  Coates,  34Q. 

Rothschild  v.  Knight,  540. 

Roundtree  v.  Adams  Exp.  Co.,  251. 

Rouse  v.  Hornsby,  521. 

Rowland  v.  Biesecker,  12. 

Royall,  In  re,  209. 

Royea's  Estate,  In  re,  147. 

Rudd  v.  United  States,  62. 

Ruinbarger  v.  Yokum,  419. 

Rumsey  &  Sikemier  Co.  v.  Nov- 
elty &  Machine  Mfg.  Co.,  114. 

Rural  Home  Tel.  Co.  v.  Powers, 
315,  358. 

Rutland  County  Nat.  Bank  v. 
Graves,  159. 

Rutland  R.  Co.  v.  Central  Ver- 
mont R.  Co.,  532. 

Ryan  v.  Bindley,  10. 

Ryan  v.  Hendricks,  104. 

Ryan   v.  Thomas,  532. 


Sage  v.  Central  R.  Co.,  560. 
Saiek  v.  Pennsylvania  R.  Co.,  319. 
St.   Anthony   Falls  Water   Power 

Co.  v.  Board  of  Water  Com'rs, 

16. 
St.  Clair  v.  United  States,  59,  66, 

549. 

St.  Lawrence,  The,  422. 
St.    Louis,   I.    M.   &    S.   R.   Co.   v. 

Taylor,  537. 
St.   Louis,   I.   M.  &   S.   R.   Co.   v. 

Vickers,  404. 
St.  Louis  Southwestern  R.  Co.  v. 

Alexander,  394. 
St.  Louis  &  S.  F.  R.  Co.  v.  Cross, 

250. 
St.  Louis  &  S.  F.  R.  Co.  v.  James, 

249,  251. 
St.   Louis  &  S.  F.   R.  Co.  v.  Mc- 

Bride,   266. 


St.  Paul,  M.  &  M.  R.  Co.   v.   St. 

Paul  &  N.  P.  R.  Co.,  237. 
St.  Paul  &  C.  R.  Co.  v.  McLean, 

378. 
St.  Paul  &  N.  P.  R.  Co.  v.  St.  Paul, 

M.  &  M.  R.  Co.,  237,  243. 
Salmon  &  Salmon,  In  re,  91. 
Samuelsohn,  In  re,  141. 
Sanborn,  In  re,  163. 
Sanborn  v.  Bay,  408,  416. 
San  Francisco  Gas  &  Electric  Co. 

v.  San  Francisco,  237,  238. 
Sansom  v.  Railroad  Co.,  406. 
Santa  Clara  County  v.  Goldy 

Mach.  Co.,  355. 
Sapiro,  In  re,  142. 
Sapphire,   The,   v.    Napoleon   III, 

261. 

Sauer  v.  New  York,  16. 
Savage  v.  Jones',  79. 
Savin,  Ex  parte,  204. 
Savings  &  Loan  Soc.  v.  Davidson, 

445. 

Sawyer  v.  United  States,  60,  61. 
Sayward  v.  Denny,  538. 
Scanlan,  In  re,  98. 
Schatz  v.  Winton  Motor  Carriage 

Co.,  10. 

Schillinger  v.  United  States,  186. 
Schmechel   Cloak  &   Suit  Co.,  In 

re,  134. 

Schofleld  v.  Palmer,  226,  393. 
Schoolfield  v.  Rhodes,  390. 
Schroeder  v.  Young,  417,  461. 
Schrom,  In  re,  126. 
Schultz,  In  re,  178. 
Schunk    v.     Moliue,    Milburn    & 

Stoddard  Co.,  227,  231. 
Schwab  v.  Berggren,  61,  68. 
Schwenk   &    Co.    v.    Strang,   341, 

372. 

Scott,  In  re,  142. 
Scott  v.  Armstrong,  10,  390. 
Scott  v.  Donald,  229,  230. 
Scott  v.  McNeal,  15. 
Scott  v.  Neely,  225,  316,  321,  390. 
Seaboard  Air  Line  R.  Co.  v.  Du- 

vall,  541. 


CASES  CITED 


731 


[The  figures  refer  to  pages] 


Seaman  v.  Northwestern  Mut. 
Life  Ins.  Co.,  453,  459. 

Searles  v.  Jacksonville,  P.  &  M. 
R.  Co.,  430. 

Searway  v.  United  States,  58. 

Seattle  L.  S.  &  E.  R.  Co.  v.  Union 
Trust  Co.,  434. 

Security  Co.  v.  Pratt,  355. 

Security  Mut.  Life  Ins.  Co.  v. 
Prewitt,  305. 

Security  Trust  Co.  v.  Black  Riv- 
er Nat.  Bank,  9. 

Seebold,  In  re,  484. 

Seefeld  v.  Duffer,  16. 

Selvester  v.  United  States,  66. 

Semniel,  In  re,  175. 

Sessler  v.  Paducah  JDistilleries 
Co.,  134. 

Seybert  v.  Shaniokin  &  Mt.  C. 
Electric  R.  Co.,  274,  276. 

Shaeffer,  In  re,  162. 

Shaffer  v.  Koblegard  Co.,  175. 

Shainwald  v.  Lewis,  217. 

Shane  v.  Butte  Electric  R.  Co., 
355. 

Sharon  v.  Hill,  26. 

Shattuck  v.  North  British  &  Mer- 
cantile Ins.  Co.,  318,  361. 

Shaver  v.  Pacific  Coast  Condens- 
ed Milk  Co.,  334. 

Shaw,  In  re,  165. 

Shaw  v.  Mining  Co.,  267. 

Shaw  v.  United  States,  58. 

Shea,  In  re,  162. 

Shearson  v.  Littleton,  256. 

Sheffield  &  B.  Coal,  Iron  &  R.  Co. 
v.  Gordon,  456. 

Shelp  v.  United  States,  45,  53. 

Shepard  v.  Ada  ins,  392. 

Shertzer,  In  re,  177. 

Shields  v.  Barrow,  258. 

Shields  v.  Colemau,  499. 

Shoemaker  v.  United  States,  200, 
201. 

Shulthis  v.  McDougal,  243,  250, 
521. 

Sibray  v.  United  States,  203. 

Sievers,  In  re,  123. 


Sigafus  v.  Porter,  407,  517. 
Silver  v.  Ladd,  557. 
Silverman,  In  re,  137,  168. 
Simmons  v.  United  States,  62. 
Siinonson  v.  Sinsheimer,  115. 
Simpson  v.  Union  Stock  Yards  Co., 

290. 

Sinsheimer  v.    Simonson,   127. 
Skinner,  In  re,  176. 
Slaughter  v.  Glenn,  17. 
Slaughter  v.  Mallet  Land  &  Cat- 
tle Co.,  288. 
Sloan  v.  Lewis,  105. 
Sloan  v.  United  States,  512. 
Sloinka,  In  re,  165. 
Smale  v.  Mitchell,  412. 
Smellie  v.  Southern  Pac.  Co.,  327. 
Smiley  v.  Kansas,  13. 
Smith,  In  re,  53,  110. 
Smith  v.  Alabama,  7. 
Smith  v.   Detroit   &  T.    S.   L.  R. 

Co.,  267. 

Smith  v.  Fifield,  285. 
Smith  v.  Jennings,  533. 
Smith  v.  Lyon,  269. 
Smith  v.  McKay,  476. 
Smith  v.  Mississippi,  51. 
Smith  v.  New  York,  N.  H.  &  H.  R. 

Co.,  253. 

Smith  v.  Packard,  284. 
Smith  v.  United  States,  63. 
Smith  v.  Vulcan  Iron  Works,  576. 
Smith    Co.    v.    Minnetto-Meriden 

Co.,  19. 
Smith   Middlings   Purifier   Co.   v. 

McGroarty,   306. 
Smithers  v.  Smith,  229. 
Smithsonian     Institution    v.     St. 

John,  533. 
Snare  &  Triest  Co.  v.   Friedman, 

19,  399. 

Snipes  v.  Southern  R.  Co.,  19. 
Sonnentheil  v.  Christian  Moerlein 

Brewing  Co.,  522. 
Soudan  Mfg.  Co.,  In  re,  151. 
South  Dakota  v.  North  Carolina. 

385. 
Southern    Loan    &   Trust    Co.    v. 

Benbow,  162. 


732 


CASES  CITED. 


[The  figures  refer  to  pages] 


Southern    Pac.    Co.   v.    Arlington 

Heights  Co.,  266. 

Southern  Pac.  Co.  v.  Bartine,  232. 
Southern  Pac.  Co.  v.  Da  Costa,  10. 
Southern  Pac.  Co.  v.  Deuton,  266, 

305,  440. 

Southern  Pac.  Co.  v.  Kelley,  413. 
Southern  Pac.  Co.  v.  Pool,  405. 
Southern  Pac.  R.  Co.  v.  Temple, 

438. 

Southern  K.  Co.  v.  Allison,  536. 
Southern  R.  Co.  v.  Carson,  333. 
Southern  R,  Co.  v.  Miller,  333, 

379. 
Southern  R.  Co.  v.  United  States, 

79. 

Southern  Realty  Inv.  Co.  v.  Walk- 
er, 288. 
Southern    Steel    Co.,    In   re,    117, 

135,  138. 
South  Penn  Oil  Co.  v.  Latshaw, 

409. 

South  Penn  Oil  Co.  v.  Miller,  258. 
Spalding,  In  re,  98. 
Sparf  v.  United  States,  62,  66. 
Speare  v.  Stone,  393. 
Speidel  v.  Henrici,  441. 
Spencer,  Ex  parte,  203. 
Spencer  v.  Duplan  Silk  Co.,  490. 
Spencer    v.    Kansas    City    Stock- 
yards Co.,  275. 
Spies  v.  Illinois,  572. 
Spreckels   Sugar  Refining   Co.  v. 

McClain,  478,  479,  491,  511. 
Stafford  v.  Norfolk  &  W.  R.  Co., 

319. 
Stalker   v.   Pullman's   Palace-Car 

Co.,  327. 

Stanbrough  v.  Cook,  337. 
Standard  Cordage  Co.,  In  re,  125. 
Standard  Oil  Co.  of  New  Jersey 

v.  United  States,  195,  265. 
Standard   Paint  Co.   v.   Trinidad 

Asphalt  Mfg.  Co.,  521,  523. 
Standard    Sanitary    Mfg.    Co.    v. 

United  States,  195. 
Standard     Stock     Food     Co..    v. 

Wright,  79. 


Stanley  v.  Schwalby,  531. 
Stanly  County  v.  Coler,  13. 
Stanton  v.  Alabama  &  C.  R.  Co., 

456. 

Starr  v.  United  States,  30,  59,  62. 
State  v.  White  River  Val.  R.  Co., 

311. 

State  Ins.  Co.,  In  re,  374. 
State  Nat.  Bank  v.  Syndicate  Co., 

91. 
State    Nat.    Bank    of  Denison  v. 

Eureka  Spring  Water  Co.,  280. 
State  of  Alabama  v.  Wolffe,  346. 
State  of  Arkansas  v.  Kansas  & 

T.  Coal  Co.,  236,  315. 
State  of  Arkansas  v.   Schierholz, 

502. 
State  of   California    v.    Southern 

Pac.  Co.,  386. 

State  of  California  ex  rel.  Has- 
tings v.  Jackson,  536. 
State  of    Delaware    v.    Emerson, 

350. 

State  of  Georgia  v.  Stanton,  384. 
State  of  Indiana  v.  Lake  Erie  & 

W.  R.  Co.,  296,  311. 
State  of  Indiana  ex  rel.  Stantou 

v.  Glover,  247. 
State  of   Kansas  v.   Colorado,   8, 

385. 
State  of  Kansas  v.  United  States, 

386. 

State  of  Kentucky  v.  Powers,  344. 
State  of   Louisiana   v.   Mississip- 
pi, 384. 

State  of  Louisiana  v.  Texas,  386. 
State  of  Louisiana  ex  rel.  Hubert 

v.  New  Orleans,  535. 
State  of  Minnesota  v.  Brundage, 

209,  210. 
State  of   Minnesota    v.   Northern 

Securities  Co.,  258,  313,  358. 
State  of  Missouri  v.  Illinois,  385. 
State  of  Missouri  ex  rel.    Hill  v. 

Dockery,  533. 

State  of  Nebraska,  Ex  parte,  322. 
State  of  New  Hampshire  v.  Loui- 
siana, 385. 


CASES  CITED 
[The  figures  refer  to  pages] 


733 


State  of  New  York  v.  Eiio,  210. 

State  of  North  Carolina  v.  Gos- 
uell,  350. 

State  of  Pennsylvania  v.  Quick- 
silver Min.  Co.,  386. 

State  of  South  Dakota  v.  North 
Carolina,  385. 

State  of  Tennessee  v.  Davis,  236, 
347,  348. 

State  of  Tennessee  v.  Qulntard, 
460. 

State  of  Tennessee  v.  Union  Plant- 
ers' Bank,  312. 

State  of  Texas  v.  White,  384. 

State  of  Virginia  v.  Paul,  347, 
349. 

State  of  Virginia  v.  Rives,  344. 

State  of  Virginia  v.  West  Vir- 
ginia, 385. 

State  of  Wisconsin  v.  Pelican  Ins. 
Co.,  383. 

Staunton  v.  Wooden,  153. 

Steam  Vehicle  Co.  of  America,  In 
re,  150. 

Steele  v.  Culver,  324. 

Steele  v.  United  States,  186. 

Steers  v.   United  States,  59,  404. 

Stegner  v.  Blake,  451. 

Stein,  In  re,  95. 

Steiuman  v.  United  States,  54. 

Stephens  v.  Merchants'  Nat.  Bank 
of  Aurora,  129. 

Stephens  v.   Smatt,  289. 

Stern,  In  re,  137. 

Stern  v.  Paper,  160. 

Stevens  v.  Fuller,  204. 

Stevens  v.  Missouri,  K.  &  T.  R. 
Co.,  451. 

Stevens  v.  Nichols,  353. 

Stevenson,  In   re,  118. 

Stevenson  v.  Illinois  Cent  R.  Co., 
332,  373. 

Stevenson  v.  United  States,  66. 

Stewart  v.  Dunham,  291. 

Stewart  v.   Masterson,   557. 

Stewart  v.  Morris,  11. 

Stillman  v.  Combe,  292. 


Stimosn     v.     United     Wrapping 

Much.  Co.,  335. 
Stone  v.  South  Carolina,  332,  373, 

374. 

Stone  v.  United  States,  191. 
Storti  v.  Massachusetts,  207,  216. 
Strauder   v.   West   Virginia,   344. 
Strauser  v.  Chicago,  B.  -&  Q.  R. 

Co.,   319. 
Streeter  v.  Jefferson  County  Nat. 

I'.ank,   133. 

Strc-tton  v.  Rudy,  215. 
Stroheim   v.    Deimel,   416. 
Strout  v.  United  Shoe  Machinery 

Co.,  295. 

Stuart  v.  Easton,  263. 
Stuart  v.  Gay,  460. 
Stuart  v.  St.  Paul,  438. 
Stntsnian  County,  In  re,  220,  221. 
Sulxer  v.  Watson,  402. 
Superior   v.    Ripley,    282. 
Swafford  v.  Templeton,  241. 
Swan,  In  re,  213. 
Swarts  v.  Hammer,  163. 
Swift  v.  Tyson,  18. 
Symonds  v.  St.  Louis  &  S.  E.  R. 

Co.,  319. 


Tacoma  v.  Wright,  342. 

Taft,  In  re,  485. 

Talbot  v.  First  Nat.  Bank,  537. 

Taylor,  In  re,  103,  129,  171. 

Taylor  v.  Easton,  464. 

Teller  v.  United  States,  427. 

Tennessee  v.  Davis,  236,  302,  347, 
348. 

Tennessee  v.  Quintard,  460. 

Tennessee  v.  Union  &  Planters' 
Bank,  312. 

Terlinden  v.  Ames,  204. 

Terrell  v.  Allison,  462. 

Terry,  In  re,  214,  215. 

Tevis  v.  Palatine  Ins.  Co.  of  Lon- 
don, Eng.,  367. 

Texas  v.  Day  Land  &  Cattle  Co., 
317. 


734 


CASES  CITED 


[The  figures  refer  to  pages] 


Texas  v.  Galnes,  345. 
Texas  v.  White,  384. 
Texas  Co.  v.  Central  Fuel  Oil  Co., 

266,  274,  276. 

Texas  &  P.  R.  Co.  v.  Cody,  314. 
Texas  &  P.  R.  Co.  v.  Cox,  237,  315. 
Texas  &  P.  R.  Co.  v.  Eastin  & 

Knox,  304,  314,  373. 
Texas   &    P.    R.    Co.    v.    Howell, 

522. 

Texas  &  P.  R,  Co.  v.  Nelson,  399. 
Texas  &  St.  L.  R.  Co.  v.  Rust, 

376. 

Thiede  v.  Utah,  64. 
Thorn  v.  Pittard,  409. 
Thomas  v.  Iowa,  537. 
Thomas  v.  Loney,  27. 
Thomas  v.  Ohio  State  University, 

250. 

Thomas  v.  Taylor,  241. 
Thompson,  In  re,  98,  154. 
Thompson  v.  Searcey  County,  14. 
Thompson  v.  United  States,  53,  55. 
Thomson  v.  Elton,  280. 
Thomson  v.  Wooster,  422,  437. 
Thorndyke  v.  Gunnison,  408. 
Three  Friends,  The,  72. 
Thurber  v.  Miller,  337. 
Thurmond  v.  Chesapeake  &  O.  R. 

Co.,  441. 
Tierney  v.   Helvetia    Swiss   F.  I. 

Co.,  267. 
Tiffany   v.   La   Plume   Condensed 

Milk  Co.,  93,  94. 
Tiffany  v.  Lucas,  108. 
Tilden,  In  re,  164. 
Tinker,  In  re,  174,  179. 
Tinker  v.  Colwell,  174,  179. 
Title  Guaranty   &  Surety   Co.  v. 

Guarantee   Title    &   Trust   Co., 

164. 

Todd  v.  United  States,  30,  32. 
Toledo,    St.    L,   &   W.    R.   Co.    v. 

Reardon,    410. 
Tomato   Catsup   Cases,  437. 
Tomlinson   Co.,  In   re,   114. 
Tom   Wah  v.   United    States,  32. 
Topliff  v.  Topliff,  456. 


Toranses  v.  Melsing,  577. 

Torchia,  In  re,  162. 

Torrence  v.  Shedd,  331. 

Torrent  v.  S.  K.  Martin  Lumber 
Co.,  376. 

Tortat  v.  Hardin  Min.  &  Mfg.  Co., 
368. 

Town  of  Martinton  v.  Fairbanks, 
549. 

Tracy  v.  Morel,  326,  368. 

Travelers'  Protective  Ass'n  v.  Gill- 
bert,  413. 

Travis  County  v.  King  Iron 
Bridge  &  Mfg.  Co.,  493. 

Treat  Mfg.  Co.  v.  Standard  Steel 
&  Iron  Co.,  510. 

Tremper  v.  Schwabacher,  318. 

Tripp  v.  Santa  Rosa  St.  R.  Co., 
555. 

Troy  Bank  v.  G.  A.  Whithead  & 
Co.,  233. 

T.  S.  Faulk  &  Co.  v.  Steiner,  Lob- 
man  &  Frank,  125. 

Tua  v.  Carriere,  91. 

Tubman  v.  Baltimore  &  O.  R.  Co. 
413. 

Tumlin    v.    Bryan,    158. 

Tupper,  In  re,  112,  113. 

Turner  v.  Richardson,  540. 

Twin  Falls  Canal  Co.  v.  Foote, 
348. 

Tyler,  Ex  parte,  294. 

Tyler  v.  Judges  of  Court  of  Regis- 
tration, 532. 

Tyler  v.   Savage,  424. 

u 

Ughbanks  v.  Armstrong,  13. 
Ullrich   v.    New    York,    N.    H.    & 

H.  R.  Co.,  319. 
Union  Bridge  Co.  v.  United  States, 

505. 

Union    Nat.   Bank   v.    Miller,    82. 
Union   Pac.   Co.   v.   Botsford,   10. 
Union  Pac.  R.  Co.,  In  re,  109. 
Union  Pac.  R.  Co.  v.  Callaghan, 

407. 


CASES  CITED 


735 


[The  figures  refer  to  pages] 


Union  Pac.  R.  Co.  v.  Harris,  237, 
522. 

Union   Pac.   R.   Cc.  v.   Yates,  11. 

Union  Terminal  R.  Co.  v.  Chicago, 
B.  &  Q.  R.  Co.,  324. 

Union  Trust  Co.,  In  re,  146,  162. 

Union  &  Planters'  Bank  v.  Mem- 
phis, 478. 

United  Railroads  of  San  Francis- 
co v.  San  Francisco,  428. 

United  States  v.  Allred,  30. 

United  States  v.  American  Bell 
Tel.  Co.,  487,  491. 

United  States  v.  American  Tobac- 
co Co.,  195. 

United  States  v.  Ames,  212. 

United  States  v.  Arwo,  37. 

United  States  v.  Baltimore  &  O. 
R.  Co.,  388. 

United  States  v.  Barber,  505. 

United  States  v.  Barnhart,  67. 

United  States  v.  Baumert,  29. 

United  States  v.  Beaty,  200. 

United  States  v.  Bellingham  Bay 
Boom  Co.,  240. 

United  States  v.  Berry,  47. 

United  States  v.  Bevans,  25. 

United  States  v.  Biggs,  505. 

United  States  v.  Borger,  53. 

United  States  v.  Brazeau,  43. 

United  States  v.  Brighton  Ranch 
Co.,  192. 

United  States  v.  Brod,  176. 

United  States  v.  Bromley,  349. 

United  States  v.  Brooke,  395. 

United  States  v.  Buffalo  Pitts 
Co.,  185. 

United  States  v.  Burchard,  186. 

United  States  v.  Burr,  29. 

United  States  v.  Collins,  29. 

United  States  v.  Congress  Const 
Co.,  268,  503. 

United  States  v.  Conrad,  44. 

United  States  v.  Cook,  43. 

United  States  v.  Corbett,  505. 

United  States  v.  Cornell,  50. 

United  States  v.  Cornell  Steam- 
boat Co.,  186. 


United  States  v.  Coudert,  487. 

United  States  v.  Cruikshank,  42. 

United  States  v.  Curtis,  50. 

United  States  v.  Davis,  190. 

United  States  v.  Dawsou,  37. 

United  States  v.  Delaware,  L.  & 
W.  R.  Co.,  47. 

United  States  v.  Doe,  30. 

United  States  v.  Dunbar,  29. 

United  States  v.  Eaton,  25. 

United  States  v.  E.  C.  Knight  Co., 
194. 

United  States  v.  Farrington,  33. 

United  States  v.  Fero,  43,  47. 

United  States  v.  Fox,  88. 

United  States  v.  Freed,  45. 

United  States  v.  Gale,  52. 

United  States  v.  Gettysburg  Elec- 
tric R.  Co.,  201. 

United  States  v.  Great  Falls  Mfg. 
Co.,  185. 

United  States  v.  Greathouse,  187. 

United  States  v.  Greene,  32,  35. 

United  States  v.  Grizzard,  200. 

United  States  v.  Hammond,  486. 

United  States  v.  Harden,  33. 

United  States  v.  Harsha,  189, 191, 
487,  518. 

United  States  v.  Hill,  491. 

United  States  v.  Holt,  63. 

United  States  v.  Hopewell,  492. 

United  States  v.  Homer,  34,  36. 

United  States  v.  Hudson,  5,  6. 

United  States  v.  Hughes,  32. 

United  States  v.  Hyams,  189. 

United  States  v.  Jahn,  477,  492. 

United  States  v.  Joint  Traffic 
Ass'n,  194. 

United  States  v.  Jones,  185,  201. 

United  States  v.  Judges  of  Unit- 
ed States  Court  of  Appeals,  493. 

United  States  v.  Karlin,  35. 

United  States  v.  Keitel,  505. 

United  States  v.  Kelly,  191. 

United  States  v.  Kilpatrick,  52. 

United  States  v.  Larkin,  475,  478. 

United  States  v.  Laws,  41. 

United  States  v.  Linuier,  46. 


736 


CASES   CITED 


[The  figures  refer  to  pages] 


United  States  v.  Louis,  32. 

United  States  v.  Lynah,  186. 

United  -States  v.  Mackoy,  77. 

United  States  v.  Mann,  70. 

United  States  v.  Martin,  25,  32. 

United  States  v.  Mills,  42. 

United  States  v.  Morgan,  186. 

United  States  v.  Noelke,  44. 

United  States  v.  Northern  Secu- 
rities Co.,  195. 

United  States  v.  Norton,  349,  491. 

United  States  v.  O'Neill,  201. 

United  States  v.  Osborn,  192. 

United  States  v.  Palmer,  186. 

United  States  v.  Pena,  553. 

United  States  v.  Penn,  27. 

United  States  v.  Peters,  48. 

United  States  v.  Peterson,  25. 

United  States  v.  Phillips,  555. 

United  States  v.  Press  Pub.  Co., 
26,  27. 

United  States  v.  Price,  35. 

United  States  v.  Raley,  43. 

United  States  v.  Reading  Co.,  195. 

United  States  v.  Rimer,  519. 

United  States  v.  Rindskopf,  77. 

United  States  v.  Rodger s,  25. 

United  States  v.  Rogers,  25. 

United  States  v.  Sanges,  509. 

United  States  v.  Sauer,  29,  32. 

United  States  v.  Sayward,  225. 

United  States  v.  Scott,  47. 

United  States  v.  Severens,  493. 

United    States   v.    Shapleigh,    73. 

United  States  v.  Smith,  32,  49. 

United  States  v.  Society  Anony- 
me  Des  Anciens  Establisse- 
ments  Cail,  186. 

United  States  v.  Southern  Pac. 
Co.,  274. 

United  States  v.  Spintz,  47. 

United  States  v.  Stevenson,  505. 

United  States  v.  Stone,  47. 

United  States  v.  Stowell,  73. 

United  States  v.  Swift,  55,  189. 

United  States  v.  Texas,  386. 

United  States  v.  The  Three 
Friends,  72. 

United  States  v.  Tom  Wah,  32. 


United  States  v.  Trans-Missouri 
Freight  Ass'n,  194. 

United  States  v.  Tureaud,  49. 

United  States  v.  Union  Pac.  R. 
Co.,  195. 

United  States  v.  United  States 
Fidelity  &  Guaranty  Co.,  393. 

United  States  v.  Upham,  44. 

United  States  v.  Van  Duzee,  50. 

United  States  v.  Watchorn,  214. 

United  States  v.  Watson,  44. 

United  States  v.  Williams,  464. 

United  States  v.  Winslow,  52,  504. 

United  States  v.  Wood,  45. 

United  States  v.  Yarborough,  35. 

United  States  v.  Zarafonitis,  29. 

United  States  v.  Zucker,  57,  71. 

United  States  Fidelity  &  Guaran- 
ty Co.  v.  Bray,  546. 

United  States  Fidelity  &  Guaran- 
ty Co.  v.  United  States,  226,  238, 
247. 

United  States  Mut  Ace.  Ass'n  v. 
Barry,  410. 

Upshur  County  v.  Rich,  221. 

Utah-Nevada  Co.  v.  De  Lamar, 
317. 


Vacuum  Cleaner  Co.  v.  Platt,  493. 
Van  Brimmer  v.  Texas  &  P.  R. 

Co.,  319. 

Vance  v.  Vandercook  Co.,  229. 
Van  De  Mark,  In  re,  145. 
Van  Doren  v.  Railroad  Co.,  399. 
Van  Duzee  v.  United  States,  50. 
Vane  v.  Newcombe,  97. 
Van  Emon  v.  Veal,  117. 
Van  Wagenen  v.  Sewall,  498. 
Vattier  v.  Hinde,  418. 
Venable  v.  Richards,  348. 
Vicksburg     Waterworks     Co.     v. 

Vicksburg,  239. 

Village  of  Norwood  v.  Baker,  238. 
Viola,  The,  188. 
Virginia,  In  re,  80,  212. 
Virginia  v.  Paul,  347,  349. 
Virginia  v.  Rives,  344. 


CASES  CITED 
[The  figures  refer  to  pages] 


737 


Virginia  v.  West  Virginia,  385. 
Virginia-Carolina  Chemical  Co.  v. 

Home  Ins.  Co.,  298. 
Von  Schroder  v.  Brittan,  446. 

W 

Wabash  R.  Co.  v.  Flannigan,  534. 

Wabash  R.  Co.  v.  Pearce,  537. 

Wabash  Western  R.  Co.  v.  Brow, 
379. 

Wade  v.  Travis  County,  15. 

Wagner  v.  Drake,  431. 

TVaite  v.  Santa  Cruz,  229,  284,  287. 

Wakefield,  In  re,  97,  98. 

Walden  v.  Skinner,  259. 

Waldron  v.  Waldron,  408. 

Wales  v.  Whitney,  203,  204. 

Walker  v.  Collins,  313. 

Walker    v.     Monad     Engineering 
Co.,  392. 

Walker  v.  Powers,  279. 

Wall  v.  Cox,  154. 

Wallenburg  v.   Missouri   Pac.   R. 
Co.,  262,  355. 

Walrath,  In  re,  94,  102. 

Walter   v.   Northeastern    R.    Co., 
234. 

Walworth  v.  Cook  Co.,  428. 

Ward,  Ex  parte,  206. 

Ward  v.  Congress  Const  Co.,  349. 

Warner  v.  Fowler,  349. 

Warner  v.  New  Orleans,  516. 

Warner  v.   Searle  &  Hereth  Co., 
523. 

Warner  v.   Spooner,  131. 

Warth,  In  re,  138. 

Washburn    v.    Pullman's   Palace- 
Car  Co.,  297. 

Washburn  &  Moen  Mfg.  Co.  v.  Re- 
liance M.  Ins.  Co.,  18. 

Waterloo  Organ  Co.,  In  re,  163. 

Waterman      v.      Canal-Louisiana 
Bank  &  Trust  Co.,  221,  224,  257. 

Watkins  v.  King,  479. 

Watson  v.   Bonfils,   244. 

Watts,  In  re,  430. 

Waxelbaum,  In  re,  94,  102. 

Wayman  v.  Southard,  422. 
HTTQHES  FED.PR.(2o  ED.) — 47 


Wayt  v.  Standard  Nitrogen  Co., 

367. 

Webb  v.  York,  481. 
Webster  v.  Oliver  Ditson  Co.,  437. 
Wecker  v.  National  Enameling  & 

Stamping  Co.,  324. 
Wedding  v.  Meyler,  532. 
Weir  v.  Rountree,  251. 
Weissman,  In  re,  163. 
Weitzel,  In  re,  95. 
Werckmeister    v.    American    To- 
bacco Co.,  78. 

Werner    v.    Murphy,    232. 
Wesson,  In  re,  172. 
West  v.  Barnes,  550. 
West  v.  Cabell,  30. 
West  v.    East  Coast  Cedar   Co., 

414. 

West  v.  Louisiana,  238. 
West  v.  Smith,  398. 
West  Co.  v.  Lea,  108,  109,  114. 
Western  Assur.  Co.  v.  Polk,  409. 
Western  Dredging  &  Improvement 

Co.  v.  Heldmaier,  408. 
Western  Inv.  Co.,  In  re,  121. 
Western   Union   Tel.   Co.   v.   Ann 

Arbor  R.  Co.,  236. 
Western  Union  Tel.  Co.  v.  Burris, 

19. 
Western   Union   Tel.   Co.    v.   Call 

Pub.  Co.,  8. 
Western  Union  Tel.  Co.  v.  Crove, 

570. 
Western  Union  Tel.  Co.  v.  Trapp, 

225. 

Westheider  v.  Railroad  Co.,  253. 
Weston  v.  Charleston,  222. 
West  Virginia  v.  King,  303. 
Wetmore  v.  Ryrner,  503. 
W.  G.  Coyle  &  Co.  v.  Stern,  313. 
Wheaton  v.  Peters,  6. 
Wheeler  v.  New  York,   N.  H.  & 

H.  R.  Co.,  238. 
Wheeler  v.  Walton  &  Whann  Co., 

435. 

Wheless  v.  St  Louis,  227,  233. 
Whitaker  v.  Pope,  397. 
Whitcomb  v.  Suiithson,  370. 
White  v.  Ewing,  292. 


738 


CASES  CITED 


[The  figures  refer  to  pages] 


White  v.  Schloerb,  124,  431. 

White  v.  United  States,  63,  67. 

White  v.  Van  Horn,  405. 

Whitehead  v.  Shattuck,  224. 

Whitelaw,  In  re,  431. 

Whitener,  In  re,  486. 

Whitney  v.  Dick,  213,  493. 

Wiborg  v.  United  States,  59. 

Wiener  &  Goodman  Shoe  Co.,  In 
re,  136. 

Wilbur  v.  Red  Jacket  Consol.  Coal 
&  Coke  Co.,  356. 

Wilcox  &  Gibbs  Guano  Co.  v. 
Phoenix  Ins.  Co.,  361. 

Wild  &  Co.  v.  Provident  Life  & 
Trust  Co.,  134. 

Wiley  v.  Sinkler,  230,  510. 

Wilkes  County  v.  Coler,  13,  15. 

Wilkins  v.  United   States,  46. 

Wilkinson  v.  Dobbie,  125. 

William  Cramp  &  Sons  Ship  &  En- 
gine Bldg.  Co.  v.  International 
Curtiss  Marine  Turbine  Co.,  470. 

Williams,  In  re,  94,  485. 

Williams   v.   Bankhead,  258,  259. 

Williams  v.  Bruffy,  529,  569,  570. 

Williams  v.  City  Bank  &  Trust 
Co.,  289. 

Williams  v.  Heard,  148. 

Williams  v.  Louisiana,  535. 

Williams  v.  Mississippi,  81. 

Williams  v.   Nottawa  Tp.,  287. 

Williams  v.  United  States,  45,  47, 
61. 

Williamsburg  Knitting  Mill,  In 
re,  146. 

Wilson,  Ex  parte,  40,  49,  153. 

Wilson  v.  Merchants'  Loan  & 
Trust  Co.,  402,  549. 

Wilson  v.  Nelson,  111,  113. 

Wilson  v.  New  England  Nav.  Co., 
403. 

'Wilson  v.  Oswego  Tp.,  335. 

Wilson  v.  United  States,  59,  62. 

Winans  v.  Attorney  General,  261. 

Wind  River  Lumber  Co.  v.  Frank- 
fort Marine,  Ace.  Plate  Glass 
Ins.  Co.,  328. 

Winn,  In  re,  296,  313. 


Winston  v.  United  States,  68. 
Wisconsin  v.  Pelican  Ins.  Co.,  383. 
Wisner,  In  re,  5,  321,  381. 
Woldson  v.  Larson,  19. 
Wolf  &  Levy,  In  re,  150. 
Wolfe  v.  Hartford  Life  &  Annuity 

Ins.  Co.,  245. 
Wolff  v.  Archibald,  353. 
Wolff  &  Co.  v.  Choctaw,  O.  &  G. 

R.  Co.,  237. 
Wollock,  In  re,  179. 
Wong  Heuug  v.  Elliott,  482. 
Wong  Him  v.  Callahan,  437. 
Wood,   In  re,  35,  210. 
Wood  v.  A.  Wilbert's  Sons  Shingle 

&  Lumber  Co.,  156. 
Woodbury  v.  Allegheny  &  K.  R 

Co.,  461. 

Woods,   In  re,  518. 
Woodside  v.  Beckham,  229,  287. 
Wooster  v.  Blake,  442. 
Worcester  v.  Georgia,  551,  552. 
Worcester  County,  In  re,  484,  486. 
World's  Columbian  Exposition  v. 

United  States,  489. 
Worsham,  In  re,  94. 
Wright,  In  re,  139,  182. 
W.  W.  Montague  &  Co.  v.  Lowry, 

195. 
Wyat  v.   Standard  Nitrogen  Co., 

367. 

Wyllie,  In  re,  101. 
Wynkoop  -  Hallenbeck  -  Crawford 

Co.  v.  Gaines,  524. 
Wynne  v.  United  States,  25. 


Yazoo  &  M.  R.  Co.  v.  Adams,  540. 

Yeager,  In  re.  101. 

Yoke  Vitrified   Brick  Co.,   In  re, 

165. 

York  Silk  Mfg.  Co.,  In  re,  135. 
Youtsey  v.  Hoffman,  335. 
Yulee  v.  Vose,  371. 


Zarafonitis  v.  United  States,  29. 
Zavelo  v.  Reeves.  135,  536. 
Zebert  v.  Hunt,  362. 


INDEX 


[THE  FIGUBES  BEFEB  TO  PAGES] 


A 

ABATEMENT, 

Plea  to  Indictment,  51. 

ABSENT  PARTIES, 

Jurisdiction  where  parties  not  within  district,  256,  273. 
Service  of  process,  276. 

ACTION  AT  LAW, 

See  Common-Law  Procedure. 

ADEQUATE  REMEDY  AT  LAW, 

Effect  on  jurisdiction  of  equity,  418. 

ADMIRALTY, 

Jurisdiction  of  district  court,  74-76. 
Review  in  circuit  court  of  appeals,  492,  578. 

AD  QUOD  DAMNUM, 

See  Condemnation  Proceedings. 

ALIENS, 

Allegation  of,  in  pleadings,  263. 

Controversies  between,  no  federal  jurisdiction,  262,  326. 

Controversies  with  citizens,  jurisdiction  of,  261,  326. 

Suits  by,  district  court  jurisdiction,  82. 

Suits  against,  locality,  267. 

See  District  Court;   Removal  of  Causes. 

AMENDMENT, 

Answers  in  equity,  448. 
Bills  in  equity,  442. 
Indictments,  46. 
Petitions  in  bankruptcy,  103. 

For  removal  from  state  court,  355. 
Pleadings  at  law,  398. 
Process,  393. 
Verdict,  411. . 

AMOUNT  IN  CONTROVERSY, 

See  District  Court;    Injunction. 

HUGHES  FED.PB.(2o  ED.)     (739) 


740  INDEX 

[The  figures  refer  to  pages] 

ANCILLARY  JURISDICTION. 

Compelling  obedience  to  orders,  461-462. 
Cross-bills,  299. 

Enjoining  judgments  or  other  proceedings,  297. 
Incidental  to  main  suit,  234,  290-300. 
Independent  of  parties  or  amount,  291-292. 
.    In  general,  290-300. 
Mandamus,  296. 

Property  in  several  districts,  295. 

Restitution  after  reversal  of  money  collected  on  decree,  462. 
Scire  facias,  297. 
Service  of  process,  435. 

ANSWER, 

In  equity,  444. 

To  interrogatories,  426. 

ANTI-TRUST, 

See  Monopolies. 

APPEAL  AND  ERROR, 

Appeal,  allowance  of,  560, 

Supersedeas  on,  561. 

Takes  up  law  and  fact  in  other  than  common-law  cases,  558. 
Assignment  of  errors,  552. 
Certificate  as  method  of,  from  circuit  court  of  appeals,  563. 

Form  and  requisites  of,  514. 

Certiorari  as  method  of,  from  circuit  court  of  appeals,  564. 
Circuit  court  of  appeals,  review  by,  574. 

Of  certain  interlocutory  orders,  575. 

Process  of,  576. 
Citation,  issue  and  service  of,  554. 

Necessary  on  writ  of  error,  555. 

Not  necessary  on  appeal  in  open  court,  560. 
Courts  of,  466. 
Supreme  court,  review  by,  544. 

Final  orders  only,  545. 
Time  limitations  on,  from  district  court,  544,  575. 

From  circuit  court  of  appeals,  561. 

From  state  courts,  567. 
Trial,  in  appellate  court,  577. 

Briefs,  578. 

Further  proof,  577. 
Writ  of  error,  form  and  issue  of,  549,  570. 

Parties  to,  555. 

Return  of,  552,  572. 

Supersedeas  and  bond,  556,  572. 

Takes  up  law  questions  in  law  cases,  547,  565. 

To  state  courts,  567. 


INDEX  741 

[The  figures  refer  to  pages] 
APPEARANCE, 

Filing  petition  to  remove  not  a  general,  379. 

State  laws  as  to,  in  federal  courts,  396. 

Waives  privilege  of  being  sued  only  in  district  of  residence,  265. 

ARGUMENT, 

On  appeal  or  error,  578. 

ARREST, 

In  criminal  cases,  29. 
Of  judgment,  67,  412. 
See  Ne  Exeat 

ASSIGNMENT, 

As  affecting  right  to  bring  suit  In  circuit  court,  278. 
As  affecting  right  to   remove  suit  from  state  court,  321. 
Colorable,  to  confer  jurisdiction,  228,  286. 

ASSIGNMENT  OF  ERRORS. 

On  appeal  or  writ  of  error,  552. 

ATTACHMENT, 

Not  sustainable  unless  defendant  personally  served  with  process, 

275,  395. 
State  laws  of,  in  federal  courts,  394. 

B 

BANKRUPTCY, 

Acts  of,  admission  of  insolvency,  116. 

By  corporations,  116. 

Assignments  or  receiverships,  113,  158. 

Fraudulent  transfers,  107,  151,  157. 

Illegal  preferences,  109,  110,  134,  148,  157. 
Adjudication,  102,  130,  152. 
Circuit  court  of  appeals,  review  by,  483. 
Courts  of,  92,  156. 

Jurisdiction  of  suits  attacking  illegal  transfers,  155. 
Creditors,  debts  provable,  nature,  135. 

Alimony,  136. 

Annuities,  136. 

Contracts,   136-137. 

Fines,  135. 

Meeting  of,  131. 

Outlawed  debts,  138. 

Proof  of  claims,  131. 

Torts,  137-138. 
Discharge,  application  for,  167. 

Burden  of  proof,  170. 

Collateral  weight  of,  172. 

Debts  unaffected  by,  178. 


742  INDEX 

[The  figures  refer  to  pages] 

BANKRUPTCY— Continued, 

Grounds  for  opposing,  172-178. 

Opposition  to,  1G9. 

Revocation  of,  181. 
Examination  of  bankrupt,  140. 

Process  to  secure  attendance  of,  141. 
Exemption,  how  set  apart,  165. 

Insolvency,  when  material  element  of  act  of  bankruptcy,  109, 
113,  115. 

Meaning  of,  158. 

Insurance,  when  passes  to  trustee,  160. 
Legislation  on,  constitutionality  of,  87. 

Construed  liberally  as  remedial,  86. 

Effect  on  state  insolvent  laws,  90. 

History  of,  83. 

Policy  of,  84. 
Petition,  defendants  to,  106. 

Defense,  how  and  by  whom  made,  126. 

Dismissal  of,  106. 

Limitation  on  filing,  117. 

Partnership,  101. 

Process  on,  119. 

Requisites  of,  involuntary,  103. 
Voluntary,  99. 

Warrant  of  seizure  on,  122. 
Preference  as  act  of,  109,  110. 

As  affecting  proof  of  claim,  131-134. 

When  voidable,  148,  157. 
Proceedings  in,  locality  of,  92. 

Corporations  subject  to,  98. 

Decedents,  98. 

Parties  to,  voluntary,  95. 
Involuntary,  96. 

Wage  earners  and  farmers,  97. 
Receiver,  when  appointed,  124. 

Powers  of,  125. 
Trial,  burden  of  proof,  129. 

When  by  jury,  128. 
Trustee,  collection  of  assets,  153. 

Distribution  of  estate,  priorities,  163. 

Election,  144. 

Interest  in  rights  of  action,  161. 

Power  of  sale,  161,  460. 

Power  to  attack  preference,  148,  154. 

Property  passing  to,  147,  160,  161. 

Recording  adjudication,  152. 

Title,  145. 


INDEX  743 

[The  figures  refer  to  pages] 
BILL, 

In  equity,  424. 

BILLS  OF  EXCEPTION, 
In  civil  cases,  407. 
In  criminal  cases,  63. 
When  federal  question  raised  by,  537. 

BILLS  OF  REVIEW, 

Decrees  in  equity,  4C4. 

BRIEFS, 

On  appeal  or  error,  578. 

c 

CERTIFICATE, 

As  method  of  appeal  from  circuit  court  of  appeals  to  supreme 

court,  563. 

Form  and  requisites,  516. 

As  method  of  sending  up  jurisdictional  questions,  498. 
Form  and  requisites,  498. 

See  Circuit  Court  of  Appeals ;    District  Court ;    Supreme 
Court. 

CERTIORARI. 

As  method  of  appeal  from  circuit  court  of  appeals  to  supreme 

court,  518,  564. 

See  Circuit  Court  of  Appeals ;   Supreme  Court. 
CHANCERY, 
See  Equity. 

CHARGE, 

To  jury,  in  civil  cases,  404. 
In  criminal  cases,  63. 

CHINESE  EXCLUSION  LAWS, 

Jurisdiction  of  suits  concerning,  197. 

CIRCUIT  COURT  OF  APPEALS, 
Auxiliary  writs,  issue  by,  493. 
Bankruptcy  cases,  when  reviewable  by,  482. 

By  appeal  or  writ  of  error,  485. 

By  supervisory  review  in  matters  of  law,  483. 
Criminal  jurisdiction,  480. 
Finality  of  decisions,  488. 

Admiralty  cases,  492. 

Citizenship  cases,  488. 

Criminal  cases,  492. 

Patent  cases,  490. 

Revenue  cases,  491. 
Habeas  corpus  appeals,  481. 
Interstate  commerce  commission  cases,  488. 


744  INDEX 

[The  figures  refer  to  pages] 

CIRCUIT  COURT  OF  APPEALS— Continued, 

Jurisdiction  in  general,  cases  excepted  from,  473. 

Constitutional  questions,  when,  478. 

Jurisdictional  questions,  when,  474-8. 

No  monetary  limit,  472. 

Subjects  of,  472. 
Organization  of,  469. 
Review  by,  574. 
Review  of  by  supreme  court,  561. 

Methods  of,  561-6. 

Special  court,  review  of,  decisions,  488,  577. 
United  States,  claims  against,  487. 

Suits  by,  487. 

See  Appeal  and  Error ;    Supreme  Court. 
CITATION, 

Issue  and  service  of,  554. 

Necessary  on  writ  of  error,  555. 

Not  necessary  on  appeal  in  open  court,  560. 

CITIZENSHIP, 

Meaning  as  affecting  jurisdiction,  243. 
Residence  not  its  equivalent,  245. 
State  not  a  citizen,  246. 

See  Corporations;   District  Court;    Removal  of  Causes. 

CIVIL  RIGHTS, 

Violation  of,  removal  of  cause  for,  343,  363. 
Suits  for,  80. 

COMMERCE  COURT, 

Jurisdiction  and  organization,  388. 
Statute  abolishing,  701. 

COMMON  LAW, 

No  common  law  of  United  States,  5,  24. 

COMMON-LAW  PROCEDURE, 

Equitable  defenses  not  permitted  in,  390. 
Equitable  titles,  suit  not  sustainable  on,  389. 
Law  and  equity  distinction  preserved,  389. 
Power  of  federal  courts  to  regulate  by  rule,  391. 
State  practice,  how  far  adopted,  391. 

Appearances,  396. 

Arrest  of  judgment,  412. 

Attachments,  394. 

Bills  of  exception,  407. 

Continuances,  399. 

Evidence,  402. 

Execution,  376. 

Instructions  to  jury,  404. 


INDEX  745 

[The  figures  refer  to  pages] 

COMMON-LAW  PROCEDURE— Continued, 
Judgment  and  reopening  of,  412. 
Jury  and  waiver  of,  400. 
New  trial,  411. 
Parties,  396. 

Pleadings  and  amendments  of,  397. 
Process  and  amendment  of,  392. 
Trial,  400. 
Verdict,   410. 

COMPLAINT, 

In  criminal  cases,  28. 

CONDEMNATION  PROCEEDINGS, 
District  court  jurisdiction  of,  198. 
Federal  statutes  authorizing,  198. 
How  far  a  suit,  222,  306. 
Procedure,  198-202. 
Public  use,  201. 

CONSTITUTION, 
Portions  quoted. 

Article  3,  §  2,  par.  1 4. 

Article  3,  §  2,  par.  2 495. 

Amendment  7 547. 

CONTINUANCE, 

A  matter  of  discretion,  61,  400. 

COPYRIGHTS, 

Jurisdiction  of  suits  concerning,  77. 

CORPORATIONS, 

Admissions  of  insolvency,  by  whom  made  in  bankruptcy  cases, 

116. 

Averment  of  citizenship  and  residence,  249,  359. 
Cannot  be  required  to  waive  right  of  removal,  305. 
Citizen  of  state  first  creating,  248-251. 
Consolidations,  253. 

Effect  of  legislation  of  two  states,  251-255. 
Of  congressional  legislation,  237,  313. 

COUNTERCLAIM, 

As  affecting  amount  of  matter  in  dispute,  230. 
On  suits  against  United  States,  186. 

COUNTS, 

In  indictment,  46. 

COURT  OF  CLAIMS, 

Organization  and  jurisdiction,  388. 

Review  of  decisions,  527,  567. 

Suits  against  United  States,  concurrent  jurisdiction.  187. 


746  INDEX 

[The  figures  refer  to  pages] 

COURT  OF  CUSTOMS  APPEALS, 

Organization  and  jurisdiction,  388. 
CRIMES, 

District  court  jurisdiction  over,  24. 

Federal  jurisdiction  over,  how  far  exclusive,  26. 

Infamous,  if  punishable  by  confinement  for  term  of  years,  40. 

Locality  as  affecting  federal  jurisdiction  over,  25. 

Place  of  commission,  35-38. 

CRIMINAL  PROCEDURE, 

Complaint  before  commissioner,  28. 
Defense,  50. 

Arraignment  and  plea,  53. 

Compulsory  process  for  witnesses,  33,  55. 

Demurrer,  52. 

Former  jeopardy,  53,  54. 

Furnishing  copy  of  indictment  and  lists  of  jurors  and  wit- 
nesses, 50. 

Motion  to  quash,  51. 

Plea  in  abatement,  51. 
Indictment,  counts  to,  46. 

Court  to  try,  41. 

Finding  of,  41. 

Not  amendable,  46. 

Requisites  of,  42. 

When  necessary,  40. 
Information,  49. 
Judgment  and  sentence,  67. 
Motion  in  arrest  of  judgment,  56,  67. 
Place  of  trial,  34. 
Preliminary  examination,  30,  33. 
Trial  and  incidents,  55. 

Bills  of  exception,  61,  63. 

Evidence,  accused  testifying,  55,  58,  59. 
Confronting  with  witnesses,  55. 
Presumption  of  innocence,  58. 

Instructions   to  jury,  56,  62. 

New  trials,  67. 

Verdict,  65. 

Review  by  circuit  court  of  appeals  or  supreme  court,  52,  480,  504. 
Warrant  of  arrest,  how  issued,  29. 
Warrant  of  removal  for  trial,  33. 

CROSS-BILL, 

Jurisdiction,  299. 
CUSTOMS, 

Jurisdiction  of  suits,  77,  491. 

Removal  of  suits  against  officers,  346. 


INDEX  747 

[The  figures  refer  to  pages] 

D 

DEATH, 

State  statutes  giving  remedy  for,  enforced  in  federal  courts,  9. 

DE  BENE  ESSE, 

Depositions,  402,  450. 

DEBENTURES, 

Jurisdiction  of  suits  on,  80. 

DECREE, 

Finality  of  for  appeal,  545,  561,  567,  568,  575. 

Dismissing  as  to  one  defendant  only  not  final,  562. 

Must  settle  principles  and  leave  only  ministerial  acts,  545. 

Remanding  removed  case  not  final,  381,  561. 

Reversing  and  remanding  for  further  proceedings  not  final, 

515,  516,  562. 
Form  of,  458. 
What  injunction  and  receivership  orders  appealable,  though  not 

final,  575. 
See  Equity  Procedure. 

DEFAULT, 

Taking  bill  in  equity  ,pro  conf  esso,  436. 

DEMURRER, 

In  equity,  abolished,  439. 
To  indictment,  52. 

DEPOSITIONS, 

Adoption  of  state  method  of  taking,  403,  450. 
In  common-law  cases,  402. 
In  equity  cases,  450. 

DISCOVERY, 

Interrogatories  annexed  to  bill  in  equity,  426. 

DISTRICT  COURT, 

Admiralty,  jurisdiction  of,  74-76. 
Aliens  and  consuls,  jurisdiction  of  suits,  82. 
Ancillary  jurisdiction  of,  234,  290. 
Assignment  as  affecting  right  to  sue  in,  278. 

Assignee,  meaning  of,  282. 

Choses  in  action,  281. 

Corporate  securities,  280. 

Right  to  remove,  how  affected  by,  321. 
Bankruptcy,  jurisdiction  of,  83. 
Chinese  exclusion  laws,  197. 
Citizens  and  aliens,  controversies  between,  260. 

Controversies  between  aliens,  no  jurisdiction,  262. 

Pleading  must  show  alienage,  263. 


748  INDEX 

[The  figures  refer  to  pages] 

DISTRICT  COURT— Continued, 

Citizenship  as  affecting  jurisdiction,  243. 

Actual  litigant,  not  beneficiary,  governs,  246. 

Corporations,  248. 

District  of  Columbia,  inhabitant  of  not  citizen  of  a  state, 
244. 

Jurisdictional  meaning  of,  243. 

Parties,  formal  or  necessary,  255. 

Plurality  of  litigants,  255. 

Territorial  inhabitant  not  citizen  of  state,  244. 
Civil  original  jurisdiction  of,  elements,  218. 
Civil  rights  acts,  suits  under,  80,  343. 
Colorable  attempts  to  confer  jurisdiction,  285. 

Assignment  of  cause  of  action,  286,  321. 

Bald  assertion  of  federal  question,  288. 

Change  of  citizenship,  286. 

Excessive  claim,  228. 

Improper  joinder  of  parties,  286. 
Composition  of,  judges  holding,  23. 
Condemnation  proceedings,  jurisdiction  of,  198. 
Criminal  jurisdiction  of,  24. 
Customs,  suits  under,  77. 
Debentures,  suits  under,  80. 
District  of  suit,  264. 

Absent  defendants,  claims  against  property  of,  271,  273. 
Procedure  on,  277. 
Publication,  277. 

Contractors  on  public  works,  268. 

Defendant's  district  ordinarily,  264,  267. 

Defendants  of  different  districts,  270. 

Employer's  liability  act,  suits  under,  268,  318. 

Plaintiff's  district,  when,  264,  268. 

Plurality  of  litigants  as  affecting,  269. 

Requirement  as  to  district  waivable,  265. 

Surety  company  suable  wherever  bond  given,  268. 
Federal  question  as  conferring  jurisdiction,  235,  309. 

Plaintiff's  pleading  must  show,  236,  312. 
Habeas  corpus,  jurisdiction  in,  202. 
Immigration  laws,  suits  under,  193. 
Indians,  allotments  of  land,  196. 
Internal  revenue,  suits  under,  77. 
Interstate  commerce  act,  suits  under,  79,  398. 

Commerce  court  jurisdiction  transferred  to,  388,  701. 
Jurisdiction  once  vested  unaffected  by  subsequent  changes,  247. 

286. 
Land  grants  of  different  states,  226. 


INDEX  749 

[The  figures  refer  to  pages] 

DISTRICT  COURT— Continued, 

Matter  in  controversy  as  affecting  jurisdiction,  227. 

Ad  damnum  clause  as  showing,  229. 

Amount  directly  involved  in  pending  suit,  227-228. 

Amount  recoverable  on  face  of  declaration,  229,  234. 

Colorable  attempts  to  show,  228. 

Counterclaim  as  affecting,  230. 

Equity  suits  asking  special  relief,  232. 

Interest  excluded,  231. 

Joint  or  several  interests  as  affecting,  233. 

Must  be  capable  of  money  estimate,  231. 

Not  affected  by  claim  being  barred  by  limitations,  230. 

Plurality  of  parties  as  affecting,  233. 
Monopolies,  suits  against,  194. 
National  banks,  suits  by  or  against,  81,  240. 
Nature  of  jurisdiction,  24. 
Ne  exeat,  right  to  issue,  216. 

Partition  suits  where  United  States  part  owners,  196. 
Patent,  copyright  and  trade-mark,  suits  under,  77. 
Penalties  and  forfeitures,  jurisdiction,  69. 

Attempts  to  defraud  government,  73. 

Nature,  whether  civil  or  criminal,  70. 

Procedure  on,  70-73. 

Remission  of,  73. 
Postal  laws,  suits  under,  77. 

Public  lands,  abatement  of  unlawful  inclosures,  192. 
Removal  of  causes,  jurisdiction  of,  301. 
Slave  trade,  suits  under,  76. 
Suits,  character  of  necessary  to  jurisdiction,  220,  311. 

At  law,  223,  311. 

In  equity,  223,  311. 
Taxes,  suits  to  enforce  lien  of,  77. 
United  States,  suits  against,  183. 

Suits  by  or  officers  of,  225. 

DISTRICT  OF  COLUMBIA, 

Inhabitant  not  citizen  of  state  in  jurisdictional  cases,  244. 
Review  of  decisions  of  court  of  appeals,  526,  566. 

DIVERSE     CITZENSHIP, 
See  Citizenship. 

DOMICILE, 

As  an  element  of  citizenship,  243-246. 

DUTIES, 

See  Customs. 


750  INDEX 

[The  figures  refer  to  pages] 

E 

EMINENT  DOMAIN, 

See  Condemnation  Proceedings. 

EMPLOYER'S  LIABILITY  ACT, 
Suits  under,  268,  318. 

EQUITY, 

Adequate  legal  remedy,  418,  441. 

Distinction  between,  and  law  preserved,  224,  389,  390. 
Equitable  titles  and  defenses  in  actions  at  law,  389.  390. 
Federal  jurisdiction  unaffected  by  state  legislation,  224,  316,  419. 
Limits  of  jurisdiction,  418. 

EQUITY  PROCEDURE, 

Bill,  amendments  to,  442. 

Averments  as  to  jurisdiction,  424. 
Averments  as  to  parties,  424. 
Counsel's  signature,  425. 
Impertinence  in,  425. 
Injunction  bills,  426. 
Interrogatories,  426. 

Decree,  compelling  performance  of  specific  acts,  420,  42L 
Execution  on,  if  for  money,  458. 
Form  of,  458. 

Sales  of  property  under,  459. 
Vacating  of  by  bill  of  review,  464. 
By  motion,  464. 
By  rehearing,  463. 
Defaults,  436. 

Defense,  mode  of  making,  439. 
Answer,  amendment  of,  448. 
Issue  on,  446. 
Probative  force  of,  445. 
Motion,  admissions  by,  442. 
Form  and  nature,  439— 442. 
Issue  on,  442. 
Right  to  answer  over,  442. 
Special  appearances  by,  139. 
English  chancery  practice,  effect  on  ours,  422. 
Hearing,  448. 
Process,  on  bill,  434. 
Service  of,  434. 
Proofs,  448. 

Depositions,  450. 
Examiner  to  take,  449. 
Ore  tenus,  448. 


INDEX  751 

[The  figures  refer  to  page*] 


EQUITY  PROCEDURE— Continued, 
References,  452. 

Appointment  of  masters,  452. 

Matters  referred,  452. 

Report  and  exceptions,  456. 
Regulation  by  rules,  420-423. 
Review,  bill  of,  464. 
Transfer  to  law  side  and  vice  versa,  441. 

EQUITY  RULES, 
History  of,  421. 
List  of  rules  quoted. 

Rule  13 434. 

Rule  17- 

Rule 

Rule  27- 

Rule 

Rule 

Rule 

Rule  31-- 

Rule  33 446. 

Rule  39 257. 

Rule  54 450. 

Rrle  69 463. 

Rule  73 427. 

See,  also,  p.  601  et  seq. 

ERROR,  WRIT  OF, 

See  Appeal  and  Error. 

EVIDENCE, 

Burden  of  proof  in  bankruptcy  cases,  129,  150. 

In  criminal  cases,  58. 

Competency  of  witnesses  in  federal  courts,  10. 
Depositions  in  common-law  cases,  402. 

In  equity  cases,  450. 
Further  proof  in  appellate  courts,  577. 
Handwriting,  proof  of,  12. 
State  statutes  of,  in  federal  courts,  10,  402. 

EXAMINATION, 

Of  accused,  30-33. 

Of  bankrupt,  140. 

Of  party  before  trial,  403. 

Of  witness,  402. 

EXCEPTIONS, 

To  answer  in  equity,  abolished,  446. 
To  master's  report,  456. 
Method  of  taking,  456. 


752  INDEX 

[The  figures  refer  to  pages] 

EXCEPTIONS— Continued, 
Requisites  of.  456. 
Time  of  taking,  456. 

See  Bills  of  Exception. 

EXECUTION, 

In  common-law  cases,  415. 
In  equity  cases,  458. 

EXEMPTION, 

Of  bankrupt,  165. 

F 

FEDERAL  COURTS, 
No  common  law,  5. 
State  laws  as  rules  of  decision,  8. 

State  construction  of  state  law,  13. 

State  decisions  as  to  real  property,  16. 

State  decisions  as  to  contract  or  personal  relations,  17. 

State  decisions  on  commercial  or  general  questions,  18. 

State  statutes  do  not  affect  equity  jurisdiction,  224.  316.  419. 
The  several  classes  of,  20. 

See  Common-Law  Procedure;  Equity  Procedure. 

FEDERAL  JURISDICTION, 
Statutory  only,  1,  3,  5. 

FEDERAL  QUESTION, 

District  court  jurisdiction  by  reason  of,  235,  309. 

Colorable  assertion,  to  confer  jurisdiction,  237,  288. 

Corporate  rights  under  federal  statutes,  237,  313. 

Suits  on  clerk's  or  marshal's  bond,  238,  522. 

Tax  laws  not  constituting  due  process  of  law,  238. 

Tax  laws  impairing  obligation  of  contracts,  238. 

Various  other  instances,  238-240. 
Different  meanings  of,  in  federal  law,  236,  542. 
Habeas  corpus  questions,  206. 

Suits  against  receivers  do  not  necessarily  involve,  241,  314. 
Supreme  court  review  of  district  court  decisions  by  reason  of, 
505. 

Includes  constitutional  or  treaty  questions  only,  509-513. 
Supreme  court  review  of  circuit  court  of  appeals  decisions  by 

reason  of,  521. 
Supreme  court  review  of  state  court  decisions  by  reason  of,  527. 

Includes  constitutional  questions  only,  532. 

Not  mere  questions  of  construction,  533. 

Various  instances  of,  534-537. 

FINAL  JUDGMENTS  AND  DECREES, 

For  purpose  of  appellate  review,  545,  561,  567,  568,  575. 


INDEX  753 

[The  figures  refer  to  pages] 


FORFEITURES, 

Jurisdiction  of  suits  for,  69. 
•  Procedure  in  suits  for,  70-73. 
Remission  of,  73. 

FORMER  JEOPARDY, 
Defense,  53. 
Plea,  54. 

FRAUDS,  STATUTE  OF, 

Enforced  in  federal  courts,  9. 


H 

HABEAS  CORPUS, 

Courts  having  appellate  jurisdiction,  481. 

Method  of  review,  481,  559. 
Federal  courts  having  cognizance  of,  211. 
Federal  questions  as  authorizing,  206. 
Matter  involved  incapable  of  pecuniary  estimate,  231. 
Nature  of  writ,  202. 
Procedure  on,  213. 
Reluctance  of  court  to  issue,  209. 
State  concurrent  jurisdiction,  208. 
When  appeals  in  not  a  matter  of  right,  551. 

HANDWRITING, 
Proof  of,  12. 

HIGH  SEAS, 

Include  the  Great  Lakes,  25. 


IMMIGRATION, 

Jurisdiction  of  suits,  193. 

INDIANS, 

Suits  concerning  allotment  of  land  to,  196. 

INDICTMENT, 

See  Criminal  Procedure. 

INFAMOUS  OFFENSES, 

Punishable  by  confinement  for  term  of  years,  40. 

INFORMATION, 

See  Criminal  Procedure. 

INHABITANT, 

Equivalent  to  resident  in  considering  district  of  suit,  267. 
HUGHES  FED.PB.(2o  ED.) — 48 


754  INDEX 

[The  figures  refer  to  pages] 
INJUNCTION, 

Appeals  from  orders  granting,  575. 

Bills  for,  426. 

Judges  who  may  grant,  429,  431. 

Matter  in  controversy,  how  estimated  in  suits  for,  232. 

Notice  of  application  for,  427. 

Temporary  restraining  order,  428. 

To  state  courts,  430. 

To  state  officials,  431. 

INSOLVENCY, 

State  insolvent  laws,  effect  of  bankruptcy  act,  90. 
See  Bankruptcy. 

INSTRUCTIONS, 

To  jury,  in  civil  cases,  404. 
In  criminal  cases,  56,  62. 

INTERLOCUTORY  DECREES  AND  ORDERS, 
Review  on  appeal,  575. 

INTERNAL  REVENUE, 

Jurisdiction  of  suits,  77,  491. 
Removal  of  suits  against  officers,  346. 

INTERROGATORIES, 
In  bill  in  equity,  426. 

INTERSTATE  COMMERCE, 

Suits  under  act,  forum,  79,  488. 
Involve  federal  question,  240. 


JOINDER, 

Of  parties,  to  give  Jurisdiction,  286. 
To  prevent  removal  of  cause,  322. 

JUDGES, 

Of  circuit  courts  of  appeals,  469. 

Of  district  courts,  23. 

Who  may  grant  injunction,  429,  431. 

JUDGMENTS, 

Finality  of  for  appellate  review,  545,  561,  567,  568,  575. 
In  criminal  proceedings,  67. 
Lien  of,  239,  414. 
Motion  in  arrest,  67,  412. 
Reopening,  413. 
See  Decree. 


INDEX  755 

[The  figures  refer  to  pages] 
JUDICIAL  CODE, 
Adoption  of,  22. 
See  Statutes. 
See,  also,  p.  623. 

JUDICIAL  SALES, 

Statute  relating  to,  459. 
Under  order  or  decree,  417,  459. 

JURISDICTION, 

Meaning  of,  474,  502. 

See  Circuit  Court  of  Appeals ;   District  Court ;   Federal  Ju- 
risdiction;   Supreme  Court. 
JURY, 

In  bankruptcy  cases,  128. 

In  common-law  cases,  400. 

Lists  of  jurors  in  criminal  cases,  50. 

Waiver  of,  400. 

L 

LACHES, 

Defense  of,  when  raised  by  motion,  441. 

LIENS, 

Of  judgments,  239-240,  414. 

Of  taxes,  77. 

When  and  how  enforceable  against  absent  defendants,  274-6. 

LIMITATIONS, 

State  statutes,  9,  138. 

Time  for  appeal  or  writ  of  error,  544,  561,  567,  575. 

LOCAL  INFLUENCE, 

Ground  for  removal  of  cause,  338. 


M 

MANDAMUS, 

Ancillary  only  in  federal  courts,  222,  296,  311. 
Hence  not  a  suit  in  cognizance  of  district  court,  222,  311. 
To  compel  remand  of  case  improperly  removed,  381. 
To  compel  signing  bill  of  exceptions,  409. 

MANDATE, 

Purpose  and  course  of,  579. 

MASTER, 

Reference  to,  452. 

Report  and  exceptions,  456. 

MATTER  IN  CONTROVERSY, 
See  District  Court;  Injunction. 


•756  INDEX 

[The  figures  refer  to  pages] 
MONOPOLIES, 

Jurisdiction  of  suits  forbidding,  194,  513. 

MOTIONS, 

As  method  of  defense  in  equity,  439. 

For  new  trial,  67,  411. 

In  arrest  of  judgment,  67,  412. 

To  quash  indictment,  51. 

To  remand  cause  removed  from  state  court,  380. 

To  reopen  decree,  464. 

NATIONAL  BANKS, 

Suits  by  and  against,  81,  240. 

NAVIGATION, 

Federal  question,  240. 

Supreme  court  review  of  certain  prosecutions  for  obstructing. 
505. 

NE  EXEAT, 

Condition  of  bond  on,  217. 

Courts  issuing,  216. 

Not  a  matter  of  right,  217. 

To  secure  attendance  of  bankrupt  for  examination,  141. 

NEW  TRIAL, 

A  matter  of  discretion,  67,  411. 

NOTICE, 

Of  application  for  injunction,  427. 

o 

OBLIGATION  OF  CONTRACT, 

As  a  federal  question,  238,  513,  535. 

OFFICERS, 

Removal  of  suits  against,  346. 


P 

PARTIES, 

Arrangement  of  for  jurisdictional  purposes,  260,  324. 

Averments  as  to  in  bill,  424. 

Formal  or  necessary  as  affecting  jurisdiction,  256-260,  269,  318, 

334. 

Improper  joinder  to  confer  jurisdiction,  286. 
State  rules  as  to  in  federal  courts,  396. 

See    Bankruptcy;     Common-Law    Procedure;     Removal    of 
Causes. 


INDEX  757 

[The  figures  refer  to  pages] 
PARTITION, 

Where  United  States  part  owners,  196. 

PATENTS, 

Jurisdiction  of  suits  concerning,  77,  242,  487,  490. 
Use  of  by  government — liability,  186. 

PENAL  CODE, 

Adoption  of,  22,  25. 

PENALTIES, 

Jurisdiction  of  suits  for,  69. 
Procedure  in  suits  for,  70-73. 
Remission  of,  73. 

PETITION, 

For  removal  of  cause  from  state  court,  353. 
In  bankruptcy,  99. 

PLEA, 

In  equity,  abolished,  439. 
To  indictment,  51-54. 

PLEADING, 

See  Common-Law  Procedure ;   Equity  Procedure. 

POSTAL  LAWS, 

Actions  under,  77,  348,  349. 
How  far  revenue  laws,  348,  349. 

PRACTICE, 

See  Common-Law  Procedure;   Criminal  Procedure;    Equity  Pro- 
cedure. 

PREJUDICE  AND  LOCAL  INFLUENCE, 
Ground  for  removal  of  cause,  338-343. 

PRIZE, 

Supreme  court  appellate  jurisdiction  over,  503. 

PROBATE  PROCEEDINGS, 

Federal  jurisdiction  of,  221,  306. 

PROCEDURE, 

See  Common-Law  Procedure;   Criminal  Procedure;   Equity  Pro- 
cedure. 

PROCESS, 

In  bankruptcy,  119. 

In  equity  on  bill,  434. 

In  suits  against  United  States,  188. 

Of  state  courts,  how  far  adopted,  392. 

On  appeal  or  error,  554,  560. 

PROHIBITION, 
A  suit,  222. 


758  INDEX 

[The  figures  refer  to  pages] 
PROOFS, 

In  equity,  448-452. 

Of  claims  in  bankruptcy,  131. 

On  appeal,  577. 

See  Evidence ;    Witnesses. 

PUBLICATION, 

In  suits  to  enforce  liens,  etc.,  277. 
In  bankruptcy,  120-121,  131. 

PUBLIC  LANDS, 

Suits  for  unlawful  enclosures,  192. 


QUASHING, 

Indictment,  51. 

QUO  WARRANTO, 

Statutory  action  in  nature  of,  a  suit,  222. 


R 

RECEIVER, 

Appeals  from  orders  appointing,  575. 

Bankruptcy  proceedings,  124. 

Extra-territorial  powers  of,  277,  295,  461-462. 

Suits  against  not  necessarily  a  federal  question,  242,  314 

REFERENCES, 

Appointment  of  masters,  452. 
Matters  referred,  452. 
Report  and  exceptions,  456. 

REMEDY  AT  LAW, 

Effect  on  jurisdiction  of  equity,  418. 

REMOVAL  OF  CAUSES, 

Bond,  form  and  condition  of,  364. 

Character  of  suit  removable,  311. 

Court  must  have  original  cognizance  of,  315,  320,  339. 

Citizens  and  aliens,  controversies  between,  326. 

Controversies  between  aliens  not  removable,  326. 
Citizens  of  different  states,  controversies  between,  320. 

Assignment  as  affecting  right,  321. 

Devices  to  prevent,  322. 

Parties,  arrangement  of,  324. 

Removable  though  in  district  of  neither  litigant  if  plaintiff 
waives,  321. 

Civil  rights,  state  denial,  343. 


INDEX  759 

[The  figures  refer  to  pages] 

REMOVAL  OF  CAUSES— Continued, 

Defendant  alone  entitled  to  when  federal  question  involved, 

317. 

Defendant  nonresident  alone  entitled  to  when  diverse  cit- 
izenship involved,  321,  328. 

Defendant  under  separable  controversy  provision,  336. 
Either  party  under  land  grants  of  different  states,  325. 
Employers'  liability  act,  suits  under,  318. 
Federal  question  as  authorizing,  309. 

Federal  corporations  as  involving,  313. 

Plaintiff's  pleading  must  show,  312. 

Plurality  of  parties,  318. 

Takes  up  entire  case,  including  nonfederal  questions, 

317. 

Filing  transcript,  375-378. 
Place  to  file,  377. 

Status  between  filing  petition  and  filing  transcript,  376. 
Time  of,  not  jurisdictional,  377. 
Land  grants  of  different  states,  325. 
Object  of  allowing  from  state  courts,  301. 
Petition,  amendable,  how  far,  355. 
Averments  as  to  citizenship,  358. 
As  to  corporations,  359. 
As  to  denial  of  civil  rights,  363. 
As  to  federal  questions,  357. 
As  to  prejudice  or  local  influence,  363. 
As  to  revenue  prosecutions,  363. 
As  to  separable  controversies,  362. 
Filing,  effect  on  state  court  proceedings,  373. 
Not  a  general  appearance,  379. 
Place  of,  356,  377. 
Steps  at,  371. 
Time  of,  365-371. 

Form  and  essentials  of,  353,  357,  358. 
Necessity  for,  jurisdictional,  352. 
Record  may  supplement,  354. 
Pleadings,  how  made  up  after  removal,  376. 
Plurality  of  defendants,  318,  328. 
Prejudice  or  local  influence,  338. 

Must  be  originally  cognizable  by  district  court,  339. 
Parties  who  may  remove,  340. 
Procedure,  341. 

Procedure  subsequent  to,  375,  378. 
Remand,  motion  to,  380. 
Revenue  officers,  suits  against,  346. 
Civil  and  criminal  cases,  347. 
Federal  employes  entitled  to  remove,  348. 


760  INDEX 

[The  figures  refer  to  pages] 

REMOVAL  OF  CAUSES— Continued, 

Procedure  under,  349. 

Revenue  cases,  meaning  of  term,  348-349. 
Separable  controversies,  329. 

Character  of  controversy,  330. 

Instances  of,  335. 

Joint  suits,  332. 

Plaintiff's  pleading  must  show,  330. 

Takes  entire  case,  337. 

Whether  resident  defendant  may  remove,  336. 
Statutes  authorizing,  307-308,  325,  329,  338. 
United  States,  suits  by,  319. 
Waiver  of  right  to,  303. 

Not  by  giving  attachment  bond  in  state  court,  304. 

Nor  by  contesting  in  state  court  after  petition  denied,  303, 
374. 

Nor  by  special  appearance  in  state  court,  304. 

State  cannot  require  general  agreement  to  waive,  304. 

RESIDENCE, 

Allegation  of  not  equivalent  to  allegation  of  citizenship,  245. 

Averments  of  as  to  corporations,  249,  359. 

Equivalent  to  inhabitant  in  considering  district  of  suit,  267. 

RESTITUTION, 

After  reversal,  of  money  collected  on  decree,  462. 

RESTRAINING    ORDER, 

On  application  for  injunction,  428. 

REVENUE  CAUSES, 
Jurisdiction,  77,  491. 
Removal  of  suits  against  revenue  officers,  346. 

REVIEW, 

Bill  of,  464. 

See  Appeal  and  Error. 

REVISED  STATUTES, 
See  Statutes. 

RULES  OF  COURT, 

In  actions  at  law,  391. 
In  equity,  420-423. 
Supreme  court,  581. 


SCIRE  FACIAS. 

Jurisdiction,  297. 

SENTENCE, 

In  criminal  proceedings,  67. 


INDEX  761 

[The  figures  refer  to  pages] 

SEPARABLE  CONTROVERSY, 
Removal  of  cause,  329-336. 

SERVICE, 

Of  process,  in  actions  at  law,  394. 
In  bankruptcy,  119. 
In  suits  in  equity,  434. 
In  suits  against  United  States,  188. 
On  appeal  or  error,  554,  560. 

SET-OFF, 

How  far  pleadable  in  federal  courts,  10,  390. 

Matter  in  controversy,  how  estimated  when  pleaded,  230. 

SLAVE  TRADE, 

Jurisdiction  of  suits  under  slave  trade  laws,  76. 

STATE, 

Not  a  citizen,  246. 

Right  of  foreign  to  sue,  260,  261. 

Supreme  court  jurisdiction  of  controversies  to  which  a  party, 

383-387. 
Territories  and  District  of  Columbia  not  included  in,  244. 

STATE  COURTS, 

Injunctions  to  stay  proceedings,  430. 
Jurisdiction  on  habeas  corpus,  208. 
Practice,  how  far  adopted,  391. 
Removal  of  causes  from,  301-381. 
Writ  of  error  to,  527-543,  567-574. 

STATE  LAWS, 

Administered  by  federal  courts,  8-19. 
Adoption  of  practice  of  state  courts,  391. 
Equity  jurisdiction  not  affected,  223. 
Insolvent  laws,  effect  of  bankruptcy  act,  90. 
Tax  laws,  federal  questions  under,  238. 

STATUTES, 

Quoted  as  follows: 

Judicial  Code,  Sec.  24,  par.  1 219,  278. 

Sec.  28 309. 

Sec.  29 351. 

Sec.  30 325. 

Sec.  31 343. 

Sec.  37 285. 

Sec.  50 256. 

.  Sec.  51 264. 

Sec.  52 271. 

Sec.  54 272. 

Sec.  55 272. 


762  INDEX 

[The  figures  refer  to  pages] 

STATUTE  S— Continued, 
Quoted  as  follows: 

Judicial  Code,  Sec.  57 273. 

Sec.  128 471. 

Sec.  129 575. 

Sec.  215 495. 

Sec.  233 383. 

Sec.  237 527. 

Sec.  238 473,  497. 

Sec.  239 471,  514. 

Sec.  240 472,  518. 

Sec.  241 520. 

Sec.  252 523. 

Sec.  262 493. 

Sec.  263 428. 

Sec.  264 429. 

Sec.  265 430. 

Sec.  266 432. 

Sec.  267 418. 

Sec.  269 411. 

Sec.  291 197,  401,  579. 

Revised  Statutes,  Sec.  649 400. 

Sec.  700 400. 

Sec.  717 216. 

Sec.  858 12. 

Sec.  862- 

Sec.  913- 

Sec. 

Sec.  91J 

Sec.  91( 

Sec.  917- 

Sec.  918 391. 

Sec.  948 394. 

Sec.  953 63. 

Sec.  954 398. 

Sec.  990 416. 

Sec.  997 552. 

Sec.  1000 556. 

Sec.  1003 567. 

Sec.  1007 556. 

Sec.  1011 547. 

Sec.  1012 559. 

Statutes  at  Large. 

1888,  Aug.  1  (25   Stat.  357;    U.  S.  Comp.   St.   1901,   p, 
701) 414. 

1892,  March   9   (27   Stat.  7;    U.   S.  Comp.   St.   1901,  p. 
664) 403. 


INDEX  763 

[The  figures  refer  to  pages] 

STATUTE  S— Continued, 

Statutes  at  Large — Continued, 

1893,  March  8  (27  Stat  751 ;    U.  S.  Comp.  St.  1901,  p. 

710) 459. 

1898,  July  1,  sec.  14b  (30  Stat.  549;    U.   S.  Comp.   St 

1901,  p.  3426) 173. 

Id.  sees.  24,  25  (30  Stat.  553;    U.  S.  Comp.  St.  1901,  p. 

3431) 482. 

Id.  sec.  60  a,  b  (30  Stat.  561 ;   U.  S.  Comp.  St.  1901,  p. 

3444) 148. 

1907,  March  2  (34  Stat.  1246) 504. 

STATUTES  OF  LIMITATION, 

As  affecting  provability  of  debt  in  bankruptcy,  138. 
How  far  pleadable  in  federal  courts,  9. 

SUIT, 

See  District  Court ;  Removal  of  Causes ;  Supreme  Court. 

SUIT  IN  EQUITY. 

See  Equity  Procedure. 

SUPERSEDE  AS, 

Bond  to  make  effective,  556. 

Condition  and  requisites  of,  557. 
Effect  of,  558. 

Extent  of  court's  discretion  in  granting  or  refusing,  561. 
See  Appeal  and  Error. 

SUPREME  COURT, 

Appellate  jurisdiction,  496. 
Bankruptcy  appeals,  523. 
District  court  appeals,  496. 

Criminal  cases,  504. 

Constitutional  or  treaty  questions,  505. 

Jurisdictional  questions  on  certificate,  497-505. 
Requisites  of  certificate,  498. 

Obstructions  to  navigation,  505. 

Prize  causes,  503. 

Trust  acts,  suits  under,  513. 
Circuit  court  of  appeals  decisions  on  certificate,  514,  563. 

By  certiorari,  518,  564. 

By  writ  of  error  or  appeal,  520,  565. 
Constitutional  or  treaty  questions,  505. 

Classes  of,  509-513. 

How  made  to  appear,  507. 

Not  mere  construction  of  statute,  511. 
Court  of  claims,  527,  567. 
District  of  Columbia  court  of  appeals,  526,  566. 
Habeas  corpus,  right  to  issue,  212. 


764  INDEX 

[The  figures  refer  to  pages] 

SUPREME  COURT— Continued, 

Ne  exeat,  right  to  issue,  216. 
State  courts,  527. 

Constitutionality  of  provision  allowing,  528. 
Courts  subject  to  review,  531. 
Parties  who  may  ask,  532. 
Questions  reviewable,  532,  568. 
How  made  to  appear,  537. 
Process  of  review,  570. 
Suits  or  proceedings  reviewable,  530. 
Territorial  courts,  525,  566. 

Include  the  Philippines,  Porto  Rico,  and  Hawaii,  525. 
Organization,  494. 
Original  jurisdiction  of,  ambassadors,  etc.,  387,  382. 

State  as  party,  383,  387. 
Sessions,  495. 

See  Appeal  and  Error ;  Circuit  Court  of  Appeals. 

SUPREME  COURT  RULES, 
Quoted  as  follows: 

Rule  29 557. 

Rule  35 552. 

Rule  36 551. 

Rule  37 516. 

See  also  p.  581  et  seq. 

SURETY  COMPANY, 

Suable  wherever  bond  given,  268. 


TAXES, 

Federal  questions  under  tax  laws,  238. 
Suits  to  enforce  liens,  77. 
See  Revenue  Causes. 

TERRITORIAL  COURTS, 
Jurisdiction  of,  388. 
Review  of  decisions,  488,  525,  566. 

TRADE-MARK, 

Suits  under,  jurisdiction,  77,  242. 
TRIAL, 

In  civil  cases,  400-112. 

In  criminal  cases,  55. 

On  appeal  or  error,  577. 

TRUSTS, 

Suits  under  acts  forbidding,  194,  513. 


INDEX  765 

[The  figures  refer  to  pages] 

u 

UNITED  STATES, 

Limited  right  of  review  in  criminal  cases,  504. 
Priority  in  distribution  of  bankruptcy  assets,  163. 
Suits  against,  aliens'  claims,  187. 

Appeal,  course  and  form  of,  189,  190,  487. 

Contractual  money  demands  only,  184. 

Forum,  183. 

Limitation,  187. 

Petition  and  process  on,  188. 

Partition  suits,  196. 
Suits  by,  court  jurisdiction,  225. 

Circuit  court  of  appeals  jurisdiction,  487. 

Right  of  removal  in,  319. 

Supreme  court  jurisdiction,  513. 

UNITED  STATES  COMMISSIONERS, 
Powers  of,  28-33. 

UNITED  STATES  COURTS, 
See  Federal  Courts. 


VERDICT, 

Directing  in  federal  courts,  405. 
Practice  of  state  courts,  how  far  adopted,  410. 
Requisites  in  civil  cases,  410. 
In  criminal  cases,  65. 

w 

WAIVER, 

Of  jury  in  federal  court,  400. 

Of  privilege  of  suit  in  district  of  residence  only,  265. 

As  affecting  right  to  remove  case,  321. 
Of  right  to  remove  case  from  state  court,  277,  374. 

WARRANT, 

Of  arrest  in  criminal  cases,  29. 

Of  removal  for  trial,  33. 

Of  seizure  in  bankruptcy,  122. 

WITNESSES, 

Competency  in  federal  courts,  10,  143. 
Lists  to  be  furnished  in  criminal  cases,  50. 
Right  of  accused  to  be  confronted  with  witnesses,  55. 
To  testify,  55,  58-9. 


766  INDEX 

[The  figures  refer  to  pages] 

WRIT  OF  ATTACHMENT, 
To  enforce  decree,  462. 

WRIT  OF  ERROR, 

See  Appeal  and  Error. 

WRIT    OF    SEQUESTRATION, 
To  enforce  decree,  462. 


WEST  PUBLISHING  CO.,  PBINTEBS,  ST.  PAUL,  MINH. 


f)ornbook  Scries 


Comprises  elementary  treatises  on  all  the  principal  sub- 
jects of  the  law.  The  books  are  made  on  the  same  gen- 
eral plan,  in  which  certain  special  and  original  features 
are  made  prominent. 


"^ornbook  plan" 


Is  to  set  forth  the  leading  principles  in  black-letter  (like 
this) 

And  to  give  the  necessary  amplification,  explanation,  ap- 
plication, etc.,  under  the  principles,  in  type  like  this.  The 
authorities  are  grouped  in  footnotes  at  the  bottom  of  the 
page.* 

This  shows  why  these  books  are  found  so  serviceable  as 
practitioners'  handbooks.  A  lawyer  may  want  to  be  re- 
minded of  the  law  ;  in  that  case  he  wants  it  presented  in 
such  a  way  that  he  can  pick  out  what  he  needs  with  the 
least  trouble. 

*The  Hornbook  Series  now  includes  treatises  on  Agency,  Admi- 
ralty, Bailments.  Bills  and  Notes,  Common-Law  Pleading,  Constitu- 
tional Law,  Contracts,  Corporations,  Criminal  Law,  Criminal  Pro- 
cedure, Damages,  Elementary  Law,  Equity  Jurisprudence,  Equity 
Pleading,  Evidence.  Executors  and  Administrators,  Federal  Juris- 
diction and  Procedure,  Insurance,  International  Law,  Interpreta- 
tion of  Laws,  Mining  Law,  Negligence,  Partnership,  Persons  and 
Domestic  Relations.  Public  Corporations,  Real  Property,  Sales, 
Torts  (2  vols.)  and  Wills. 


Uniform  price,  $3.75  a  volume,  delivered. 
Bound  in  American  Law  Buckram. 


West  Publishing  Co. 

St.  Paul,  Minn. 

100  William  St.  225  Dearborn  St. 
New  York.  Chicago. 


C6559a 


23arrotps  on  negligence. 

1899.     634  pages.    $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 

6.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11.  Negligence  of  Municipal  Corporations. 


CG559-1 


Black  on  Construction  anb 
3nterpretatton  of  CCUPS. 

1911.     624  pages.    $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  and  Treatises  on  Constitution- 
al Law,  Judgments,  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Presumptions  in  Aid  of  Construction,  and  Consideration  of  Ef- 

fects and  Consequences  of  Act. 

5.  Literal  and  Grammatical  Construction,  Meaning  of  Language, 

and  Interpretation  of  Words  and  Phrases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Construction  of  Statute  as  a  Whole  and  with  Reference  to  Ex- 

isting Laws. 

9.  Interpretation  with  Reference  to  Common  Law. 

10.  Retrospective  Interpretation. 

11.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

12.  Strict  and  Liberal  Construction. 

13.  Mandatory  and  Directory  Statutes  and  Provisions. 

14.  Amendatory  and  Amended  Acts. 

15.  Construction  of  Codes  and  Revised  Statutes. 
10.  Adopted  and  Re-enacted  Statutes. 

17.  Declaratory  Statutes. 

18.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 

With  Key-Number  Annotations 

CC559b-2 


Black's  Constitutional  £atr>. 

1910.     868  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 

Third  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 

6.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

8.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 

10.  The  Establishment  of  Republican  Government. 

11.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  of  Taxation. 

16.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

18.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

20.  Constitutional  Guaranties  in  Criminal  Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 

With  Key-Number  Annotations 
C6559b  -3 


23lack  on  Cfye  £atr>  of 
3ubtcial  Precebents 

or  tbe 

Science  of  Case  £att> 

1912.     766  pages.     $3.75  delivered 
By  H.  CAMPBELL  BLACK 


TABLE  OF  CONTENTS 

Chap. 

1.  Nature  and  Authority  of  Judicial  Precedents. 

2.  Dicta. 

3.  Doctrine  of  Stare  Decisis. 

4.  Constitutional  and  Statutory  Construction. 

5.  Rules  of  Property. 

6.  The  Law  of  the  Case. 

7.  Authority   of  Precedents   as   Between   Various   Courts  of   the 

Same  State. 

8.  Authority  of  Precedents  as  Between  the  Various  Courts  of  the 

United  States. 

9.  Decisions  of  Federal  Courts  as  Authorities  in  State  Courts. 

10.  Decisions  of  Courts  of  Other  States. 

11.  Decisions  of  Courts  of  Foreign  Countries. 

12.  Federal    Courts    Following   Decisions    of    State    Courts;     in 

General. 

13.  Same;   Matters  of  Local  Law  and  Rules  of  Property. 

14.  Same;    Validity  and  Construction  of  State  Constitutions  and 

Statutes. 

15.  Same;    Federal  Questions. 

16.  Same;    Commercial  Law  and  General  Jurisprudence. 

17.  Same;   Equity  and  Admiralty. 

18.  Same;    Procedure  and  Evidence. 

19.  Effect  of  Reversal  or  Overruling  of  Previous  Decision. 


(Elarlt  on  Contracts. 

1904.     693  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 
Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 


Chap. 

1.  Contract  in  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

6.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract, 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract 


C6559-5 


Clark  on  Corporations. 

1907.    721  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 
Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 

6.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations — Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


CG559-G 


Clark's  Criminal  £atr». 

1902.    517  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


C6559-7 


Clark's  Criminal  Proceburc. 

1895.     665  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  and  a  "Handbook  of 

Contracts." 


TABLE   OF  CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading — The  Accusation. 
'  6.  Pleading — The  Accusation. 

7.  Pleading — The  Accusation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence, 

15.  Habeas  Corpus. 

C6559-8 


on  Executors  cmb 
Ctbmtntstrators. 

1897.     696  pages.     $3.75  delivered. 

By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors, 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations— Set-off. 

25.  Evidence  and  Costs. 


CG559-9 


Costtgcm  on  XHtntng  £anx 

1908.     765  pages.     $3.75  delivered. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  Law  of  the  University  of  Nebraska. 


TABLE    OF   CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posses- 

sions of  the  United  States. 

3.  The  Land  Department  and  the  Public  Surveys. 

4.  The  Relation  Between   Mineral  Lands  and  the  Public  Land 

•  Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead,  Timber 

and  Desert  Entries. 

6.  The  Relation  Between  Mineral  Lands  and  the  Various  Public- 

Land  Reservations. 

7.  The  Relation  Between  Mineral  Lands  and  Townsites. 

8.  Definitions  of  Practical  Mining  Terms. 

9.  Definitions  of  Mining  Law  Terms. 

10.  The  Discovery  of  Lode  and  Placer  Claims. 

11.  Who  May  and  Who  May  not  Locate  Mining  Claims. 

12.  The  Location  of  Lode  Claims. 

13.  The  Location  of  Mill  Sites. 

14.  The  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 

nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 

16.  The  Annual  Labor  or  Improvements  Requirements. 

17.  The  Abandonment,   Forfeiture,   and   Relocation  of  Lode  and 

Placer  Mining  Claims. 

18.  Uncontested  Application  to  Patent  Mining  Claims. 

19.  Adverse  Proceedings  and  Protests  Against  Patent  Applications. 

20.  Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Land  Entries  and  Patents. 

23.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

25.  Mining  Partnerships  and  Tenancies  in  Common. 

26.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


(Satcm  on  (Squtty. 

1901.     734  pages.    $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor   3d   Edition   Collier   on   Bankruptcy,   Co-Editor   American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


O5559-10 


(Barbner  on  tDtUs. 

1903.     726  pages.     $3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 

be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

16.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and  Contingent  Interests — Remainders 

— Executory  Devises. 

18.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


1911.    About  775  pages.    $3.75  delivered. 

By  EUGENE  A.  GILMORE. 

Author  of  Gilmore's  Cases  on  Partnership 
(American  Casebook  Series). 


TABLE   OF  CONTENTS. 

Chap. 

1.  What  Constitutes  a  Partnership. 

2.  Formation  and  Classification  of  Partnerships. 

3.  The  Nature  and  Characteristics  of  a  Partnership. 

4.  Nature,  Extent,  and  Duration  of  Partnership  Liability. 

5.  Powers  of  Partners. 

6.  Rights  and  Duties  of  Partners  Inter  se. 

7.  Remedies  of  Creditors. 

8.  Actions  Between  Partners. 

9.  Actions  Between  Partners  and  Third  Persons. 

10.  Termination  of  the  Partnership. 

11.  Limited  Partnerships. 


With  Key-Number  Annotations 


OG559b-13 


£)ale  on  Bailments  anb 
Carriers. 

1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE    OF   CONTENTS. 
Cbap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges. 

5.  Bailments  for  Mutual  Benefit — Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


on  Damages 


1912.     $3.75   delivered 

By  WM.  B.  HALE 

Author  of  "Bailments   and  Carriers" 

Second  Edition:    By  ROGER  W.  COOLEY 


TABLE  OF  CONTENTS 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph  Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 

With  Key-Number  Annotations 

C6559b-16 


on  (Torts. 

1896.     636  pages.    $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE   OF   CONTENTS. 

• 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


CG559-17 


on  Heal  Property. 

1896.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity— Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional   Life  Estates. 
C.  Estates  as  to  Quantity — Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less   than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 

10.  Equitable  Estates.  . 

11.  Estates  as  to  Time  of  Enjoyment — Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 

16.  Title. 


C6559-1S 


on  dbmiralty. 


1901.    504  pages.     $3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE   OF   CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respoudentia ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(G)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  26,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 
0.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


CG559-19 


on 
3urtsbictton  cmb  Procedure. 

1904.    634  pages.    $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introduction — What  it  Comprehends. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District    Court — Criminal     Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court — Bankruptcy. 
6-8.  Same — Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 
10.  The  Circuit  Court — Original  Jurisdiction. 
11-12.  Same — Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 
14-15.  Same — Continued. 

16.  The  Circuit  Court — Jurisdiction  by  Removal — Original  Juris- 

diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction — The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction — The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


C6559-20 


3ngersoll  on  Public 
Corporations. 

1904.    738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  University  of  Tennessee  School  of  Law. 


TABLE   OF   CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 

Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal   Corporations. 

0.  Their  Creation— How— By  What  Bodies— Subject  to  What  Re- 
strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employe's. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Parks,  and  Public  Buildings. 

16.  Torts. 

17.  Debts,  Funds,  Expenses,  and  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Corporations. 


C6559-21 


on  Corts. 


1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 

Part  1.— IN  GENERAL. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CG559-22 


on  (Stnbence. 

1907.    540  pages.    $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 


TABLE  OF  CONTENTS. 
Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 

C65r>9-23 


Horton  on  Bills  anb  Hotes. 

1900.    600  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


CG559-24 


Shipment  on  (£ommotv£atr> 


1895.     G15  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  The  Parties  to  Actions. 

4.  The  Proceedings  in  an  Action. 

5.  The  Declaration. 

6.  The  Production  of  the  Issue. 

7.  Material  ty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


CG559-25 


Sfytpmcm  on  (Equity 
Pleading. 

1897.     644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 
Author  of  "Shipruan's  Common-Law   Pleading." 


TABLE   OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 

6.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


! ! 

CG559-2G 


Smiths  (Elementary  £aux 

1896.    367  pages.     $3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 

16.  Title  to  Real  Property. 

17.  Personal  Property. 

18.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 
20.  Procedure. 

27.  Trials. 


CG359-27 


(Tiffany  on  Clgenqj. 

1903.    609  pages.    $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  "Law  of  Sales,"  etc. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratification. 

4.  What  Acts  Can  be  Done  by  Agent — Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person— Contract. 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGEJSiT. 

15.  Duties  of  Agent  to  Principal. 

16.  Duties  of  Principal  to  Agent. 

Appendix. 


1912.    610  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Tiffany  on  Sales,"  "Tiffany  on  Agency,"  etc. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Introductory. 

2.  Deposits. 

3.  Checks. 

4.  Payment  of  Checks. 

5.  Clearing  House. 

6.  Collections. 

7.  Loans  and  Discounts. 

8.  Bank  Notes. 

9.  Banking  Corporations. 

10.  Representation  of  Bank  by  Officers. 

11.  Insolvency. 

12.  National  Banks. 

13.  Savings  Banks. 
Appendix. 


With  Key-Number  Annotations 


C6559-281/6 


Ctffcmy  on  persons  anb 
Domestic  delations. 

1909.    656  pages.    $3.75  delivered. 

By  WALTER  C.  TIFFANY. 

Second  Edition :  Edited  by  Roger  W.  Cooley. 


TABLE   OF   CONTENTS. 
Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part  4.— INFANTS,   PERSONS    NON    COMPOTES   MENTIS, 
AND  ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part  5.— MASTER  AND   SERVANT. 

16.  Creation  and  Termination  of  Relation. 


(Tiffany  on  Sales. 

1908.    534  pages.    $3.75  delivered. 
By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE   OF  CONTENTS. 
Cbap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession. 
6   Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act 


C6559a— 30 


Dance  on  Insurance. 

1896.     683  pages.    $3.75  delivered. 

By  WILLIAM  REYNOLDS  VANCE, 

Professor  of  Law  in  the  George  Washington  University., 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  rules  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  much 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment, 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insurance, 
Appendix. 


C6559-31 


IPilson  on 
3ntemational 


1910.    623  pages.     $3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE    OF   CONTENTS. 

Chap.  . 

1.  Persons  in  International  Law. 

2.  Existence,  Independence  and  Equality. 

3.  Property  and  Domain. 

4.  Jurisdiction. 

5.  Diplomatic  Relations. 

6.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agreements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 

9.  Non-Amicable  Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations. 

12.  Rights  and  Obligations  During  War. 

13.  Persons  During  War. 

14.  Property  on  Land. 

15.  Property  on  Water. 

16.  Maritime  Capture. 

17.  Rules  of  War. 

18.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Non-Hostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 
1T>.  Blockade. 

26.  Continuous  Voyage. 

27.  Unneutral  Service. 

28.  Prize. 


C6R59-32 


/ 
. 


LAW  LIBRARY  <&, 

UNIVERSITY  OF  CALIFORNIA      V 
LOS  ANGELES 


MONOLITH  PORTLAND  CEMENT 


A    000  891  851     8 


